CLA-2 CO:R:C:T 954978 CMR
District Director
U.S. Customs Service
6269 Ace Industrial Drive
Milwaukee, Wisconsin 53237-0260
RE: Protest with Application for Further Review #3701-93-100113;
Classification of tubular knitted polyethylene netting;
made up articles; Note 7, Section XI; headings 3917, HTSUSA,
6307, HTSUSA, or 6002, HTSUSA
Dear Sir:
This ruling is in response to a timely protest filed by the
firm of Sullivan & Lynch on behalf of their client, XXXXX
XXXXXXXXX Inc., against your liquidation and classification of
three entries of certain tubular knitted polyethylene netting.
You classified the netting as a warp knit openwork fabric of
subheading 6002.20.1000, HTSUSA. Protestant claims the netting
is classified in subheading 3917.32.00, HTSUSA, which provides
for tubes, pipes and hoses, of plastics, not reinforced or
otherwise combined with other materials, without fittings, of
polyethylene, or in the alternative, in subheading 6307.90.99,
HTSUSA, as an other made up article of textile fabric.
FACTS:
Protestant describes the merchandise at issue as
polyethylene packaging mesh. Customs has described it as a
tubular, open-work, warp knit fabric of polyethylene.
The protestant asserts classification of the merchandise
under heading 3917.32.00, HTSUSA, based upon Note 8, Chapter 39,
HTSUSA, which states that the expresssion "tubes, pipes and
hoses" includes, among other things, lay flat tubing. Protestant
cites to NYRL 836407 of February 22, 1989, for support of its
claim. That ruling classified net-like lay flat tubing, imported
in material lengths and used to make bait holders for lobster
fishing or packaging for Christmas trees, in subheading
3917.32.00, HTSUSA. The lay flat tubing was described as
"composed of extruded polyethylene and...not made from pre- -2-
existing filaments." Protestant believes the merchandise at
issue herein is similar to the merchandise ruled upon in NYRL
836407 based upon the description and the fact that protestant's
merchandise is also used as a lobster bait holder and can be used
for the bagging of Christmas trees. Therefore, protestant
believes its merchandise should be classified in subheading
3917.32.00, HTSUSA, in accord with NYRL 836407.
In the alternative, protestant seeks classification of the
merchandise at issue as an other made up article of textile of
heading 6307, HTSUSA. The Harmonized Commodity Description and
Coding System Explanatory Notes (hereinafter EN) are cited for
support of this proposition. Protestant cites the EN to heading
6307, HTSUSA, wherein it is stated:
Besides the finished articles listed above, this heading
covers articles in the length, made up within the meaning of
Note 7 to Section XI, provided they are not included in
other headings of Section XI.
Protestant believes its product meets the terms of Note 7,
Section XI, as stated in provision (f) of the note. Note 7(f)
states:
For the purposes of this Section, the expression "made up"
means:
(f) Knitted or crocheted to shape, presented in the
form of a number of items in the length.
Protestant cites HRLs 084348 of August 3, 1989, and 085570 of
January 12, 1990, for further support.
You based your classification of the merchandise as knit
fabric of heading 6002, HTSUSA, upon an analysis of the product
by one of Customs laboratories and a review of the material by
the National Import Specialist assigned to this merchandise.
The original sample of the merchandise at issue was
inadvertently destroyed. Another sample was submitted by
protestant's counsel and received by Customs on December 14,
1993. This sample was examined by the National Import Specialist
who advised this office it is not the same construction as the
original sample. This office obtained the Customs laboratory
report with a swatch of the original sample attached. Upon
examination, we must agree the samples are different and
therefore we will ignore the sample submitted on December 14th
and base our decision upon the sample swatch and laboratory
report.
-3-
ISSUE:
Is the polyethylene netting at issue classified as plastic
lay flat tubing of polyethylene in subheading 3917.32.00, HTSUSA,
or as an other made up article of textile of subheading
6307.90.99, HTSUSA, or as a knit fabric of subheading
6002.20.1000, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
The Customs laboratory report with a piece of the subject
merchandise attached described the merchandise as follows:
The sample consists of a tubular, open-work, warp knit
fabric having a width of 16 centimeters when laid flat.
This fabric is composed of 100 percent by weight of
polyethylene strips of an apparent width not exceeding one
millimeter.
Note 1(g), Section XI, provides:
This section does not cover:
Monofilament of which any cross-sectional dimension
exceeds 1 mm or strip or the like (for example, artificial
straw) of an apparent width exceeding 5 mm, of plastics
(Chapter 39), or plaits or fabrics or other basketware or
wickerwork of such monofilament or strip (Chapter 46).
Note 2(l), Chapter 39, provides: "This chapter does not cover:
(l) Goods of section XI (textiles and textile articles).
Based upon the legal notes cited above and the laboratory
report provided to us, it is clear that the strips from which the
merchandise at issue is made are considered textile for tariff
purposes. As such, the merchandise is excluded by Note 2(l) from
classification in Chapter 39.
As to protestant's reliance upon NYRL 836407, the
merchandise at issue therein was made in a different manner of a
different material. That merchandise was formed directly by
extrusion through a forming die. It was not a textile, but a -4-
plastic good based upon the manner of production. Thus, NYRL
836407 is of no support for protestant because it is on a
completely different good.
Protestant's alternate claim, heading 6307, HTSUSA, requires
that the merchandise meet the terms of Note 7, Section XI, for
qualifying as "made up". Protestant relies upon provision (f) of
Note 7, which states that, in brief, the expression "made up"
means "knitted or crocheted to shape, presented in the form of a
number of items in the length." Protestant's counsel asserts the
good meets this definition as it is knitted to shape and in
continuous lengths.
We disagree with this assertion. The merchandise at issue
is not recognizable as a "number of items in the length". It is
one continuous tubular length of fabric and thus, does not meet
the definition of "made up" in Note 7(f).
Protestant cites HRLs 084348 and 085570 as support that his
merchandise should be classified as a made up article of heading
6307, HTSUSA. The goods at issue in those rulings did meet the
requirements of Note 7 for consideration as "made up". In HRL
084348, the merchandise was described as being made of two panels
which were joined by folding over and heat-sealing the edges.
Clearly, the merchandise therein and the merchandise at issue
here are distinguishable. HRLs 084348 and 085570 do not lend any
support to protestant's argument.
Finally, protestant's counsel cited Fabrene Inc. v. United
States, Slip Op. 93-164, decided August 16, 1993, and Sanwa
Foods, Inc. v. United States, Slip Op. 93-169, decided August 23,
1993 (judgement for the plaintiff), as supportive of the sought
classification. In the matter of Sanwa Foods, a rehearing was
granted on February 22, 1994, in Sanwa Foods, Inc. v. United
States, Slip Op. 94-30. The decision after the rehearing, Sanwa
Foods, Inc. v. United States, Slip Op. 94-76, decided May 10,
1994, was for the defendant.
Customs has reviewed these decisions and finds they do not
support the protestant's claim. Fabrene merely refers to the
descriptions contained in Customs rulings HRLs 084348 and 085570,
and the case was dismissed for lack of jurisdiction. Sanwa dealt
with merchandise that was of plastic and classified in Chapter
39. Chapter 39 does not contain an analogous "made up"
requirement as that of Chapter 63. In addition, in Sanwa, Slip
Op. 94-76, the court agreed that Customs classification of the
merchandise at issue therein in subheading 3920.10.00, HTSUSA,
which provides for other plates, sheets, film, foil, and strip of
plastics, noncellular and not reinforced, laminated, supported or
similarly combined with other materials: of polymers of ethylene,
-5-
was correct. The plaintiff in the case had sought classification
of the merchandise as articles for the conveyance or packing of
goods, of plastic, of heading 3923, HTSUSA.
Having reviewed the protestant's arguments, we believe the
merchandise was correctly classified by Customs as a tubular,
open-work, warp knit fabric of polyethylene classified in
subheading 6002.20.1000, HTSUSA, which provides for other knitted
or crocheted fabrics: other, of a width not exceeding 30 cm:
open-work fabrics, warp knit. Goods classified therein fall
within textile category 229 and are subject to a rate of duty of
16 percent ad valorem.
HOLDING:
The protest should be denied in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division