CLA-2 CO:R:C:M 952796 RFA
District Director of Customs
610 South Canal Street
Chicago, IL 60607
RE: Protest No. 3901-92-101055; GRI 2(a); Stokboard;
essential character; 9817.00.50; agricultural or
horticultural purposes; HQ 083930; HQ 086883; HQ
087076; HQ 089936; HQ 951325
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 3901-92-101055, dated July 23,
1992. The protest was filed against your liquidation of the
entry of certain merchandise which was classified in subheading
3920.10.00, Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The merchandise, "Stokboard", is a particle-board like
product made from 100% low density polyethylene plastic with an
embossed surface texture plastic film heat-welded to the upper
and lower surfaces. It is not further worked. Stokboard is
imported in sheets measuring 4 feet by 8 feet, in 1/4 and 1/2
inch thicknesses. Subsequent to importation, the Stokboard
sheets are cut into one of 4 basic sizes in order to be put to
their intended use. These sizes are: 24" x 32"; 24" x 48"; 12" x
32"; and 12" x 48". Counsel for the importer states that 95% of
the cutting of the sheets is done by the importer or by
distributors. Only 5% of the cutting is done in the field by hog
farmers.
After the Stokboard is cut down to its various sizes, it is
sold to distributors for use by hog farmers. According to the
literature which was provided, the Stokboard can be used by hog
farmers as wear pads, which are used in farrowing stalls so that
a sow will not dig a hole in the ground and thus possibly injure
herself; as feed saver pads, which are slid under feed bins to
recover feed from being lost to the expanded metal floor below as
the animal eats; as creep mats, which serve as material upon
which hogs sleep; as liners for livestock trailers; and other
uses for raising livestock.
ISSUE:
Does the Stokboard qualify for duty-free entry as
agricultural or horticultural implements, in Chapter 98, under
the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
Subheading 9817.00.50, HTSUS, grants duty free treatment for
"[m]achinery, equipment and implements to be used for
agricultural or horticultural purposes. . .". This is an actual
use provision. See HQ 083930 (May 19, 1989). To fall within
this special classification, a three part test must be met.
First, the subject merchandise must not be excluded from the
heading under Section XXII, Chapter 98, Subchapter XVII, U.S.
Note 2, HTSUS. Secondly, the terms of the headings must be met
in accordance with GRI 1, which provides that classification is
determined according to the terms of the headings and any
relative section or chapter notes. Thirdly, the article must
comply with the actual use provision required under section
10.131 through 10.139, Customs Regulations (19 CFR 10.131 through
10.139). See HQ 086883 (May 1, 1990); HQ 087076 (June 14, 1990);
HQ 089936 (November 15, 1991).
The first part of the test is to determine whether Stokboard
is excluded from Heading 9817, HTSUS. To do this we must first
determine under which subheading it is classified. According to
U.S. Customs Laboratory Report No. 3-92-20046-001, dated November
15, 1991, the merchandise is a black plate composed of a hard,
noncellular plastics material of the polyethylene type. There
were no reinforcing material or laminated layers found. Based
upon the laboratory report, we find that Stokboard is
classifiable under subheading 3920.10.00, HTSUS.
Subheading 3920.10.00, HTSUS, provides for: "[o]ther plates,
sheets, film, foil and strip, of plastics, noncellular and not
reinforced, laminated, supported or similarly combined with other
materials: [o]f polymers of ethylene. . .". This subheading is
not excluded from classification in Heading 9817, HTSUS, by
operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note
2.
The second part of the test calls for the Stokboard to be
included within the terms of subheading 9817.00.50, HTSUS, as
required by GRI 1. The Stokboard must be "machinery",
"equipment" or "implements" used for "agricultural or
horticultural purposes". For this part of the test, the initial
determination to be made is what agricultural or horticultural
pursuit is in question. It is the importer's position that
Stokboard assists in raising swine by its use as a floor mat,
wall liner, and for easy sanitary maintenance. This is clearly
an agricultural pursuit.
The next determination to be made is whether the subject
merchandise is "machinery", "equipment" or "implement". The
Stokboard is imported in standard form in sheets measuring 4 feet
by 8 feet. These sheets are then cut to size before they are put
to their intended use. GRI 2(a) states in part:
[a]ny reference in a heading to an article shall be
taken to include a reference to that article incomplete
or unfinished, provided that, as presented, the
incomplete or unfinished article has the essential
character of the complete or finished article. . . .
We find that the Stokboard as imported is not an unfinished
article because it does not have the essential character of a
complete or finished article which is used in agriculture. As a
sheet, the identity of the Stokboard is not fixed with certainty.
Even though articles made from it are intended for use in the
care and keeping of hogs in its condition as imported, the
Stokboard does not have the requisite attributes of an
agricultural implement.
Therefore, the merchandise does not meet the second part of
the test for classifying an item in subheading 9817.00.50, HTSUS.
We find that the Stokboard as imported does not qualify for duty-
free entry as agricultural or horticultural implements, in
Chapter 98, under the HTSUS.
Counsel for the importer cites HQ 951325 (May 12, 1992) for
support of his argument that Stokboard is an "agricultural
implement". In HQ 951325, we held that animal stalls, made of
galvanized steel tubing which are attached to the wall of a barn
or stable with the legs embedded in the cement floor, were
qualified for tariff treatment under subheading 9817.00.50,
HTSUS, if they met all the applicable requirements of section
10.131 through 10.139, Customs Regulations (19 CFR 10.131 through
10.139).
However, the merchandise here is not imported in its final
form, only requiring assembly as was the case in HQ 951325.
Instead, the Stokboard as imported is only a material from which
the agricultural implement will be made.
HOLDING:
The submitted merchandise is classifiable under subheading
3920.10.00, HTSUS, which provides for: "[o]ther plates, sheets,
film, foil and strip, of plastics, noncellular and not
reinforced, laminated, supported or similarly combined with other
materials: [o]f polymers of ethylene. . .". The column 1,
general rate of duty is 4.2 percent ad valorem.
The protest should be denied in full. A copy of this
decision should be attached to Customs Form 19 and provided to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division