CLA-2 CO:R:C:T 950561 HP
Ms. Kathleen M. Haage
Area Director
U.S. Customs Service
Airport International Plaza
Newark International Airport
Newark, NJ 07114
RE: Internal Advice 24/91. HRL 087173 revoked. Crab nets are
considered commercial fishing nets, as opposed to similar to
sports nets. Pier I Imports; principle use; fish landing nets.
Dear Ms. Haage:
This is in reply to your memorandum CLA-1-01-N:TB: CF, of
April 18, 1991, forwarding a request for Internal Advice under
Section 177(a)(2), Customs Regulations (19 C.F.R. 177(a)(2)).
FACTS:
The merchandise at issue consists of two ring crab nets,
made in China. Three samples were presented: one taken from an
actual shipment and two furnished by the importer, F.J. Neil
Company, Inc., at the time of this Internal Advice request.
The net from the shipment consists of an upper galvanized
steel wire ring, approximately 16" in diameter. The lower ring
is about 101/2" in diameter, and is suspended approximately 6"
below the top ring. The thickness of the wire in both rings is
about 7/64". The wire rings form the frame - "bowl shape" - for
a knotted cotton cord net of about a 11/4" mesh. The net, with a
three cord and hook suspension, weighs 0.1324 kilograms.
The nets furnished by the importer consist of rings of the
same diameter and depth, but the wire in both rings is slightly
thicker (approximately 9/64"), and the cotton cord is slightly
thicker but of a looser twist. These nets weigh 0.1986 kg each.
The importer has requested that the crab nets be classified
under subheading 9597.90.60, HTSUSA, as fish landing nets,
butterfly nets and similar nets. It is your position that the
crab nets should be classified under subheading 5608.90.1000,
HTSUSA, as other fishing nets.
ISSUE:
Whether the crab nets are considered similar to fish landing
nets and butterfly nets, or to fishing nets, under the HTSUSA?
LAW AND ANALYSIS:
Heading 5608, HTSUSA, provides for, inter alia, made up
fishing nets and other made up nets, of textile materials. The
Explanatory Notes (EN) to the Harmonized Commodity Description
and Coding System (Harmonized System) constitute the official
interpretation of the scope and content of the tariff at the
international level. They represent the considered views of
classification experts of the Harmonized System Committee.
Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153,
14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158
(Ct. Int'l Trade 1992). While not treated as dispositive, the EN
are to be given considerable weight in Customs' interpretation of
the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip
op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993).
It has therefore been the practice of the Customs Service to
follow, whenever possible, the terms of the Explanatory Notes
when interpreting the HTSUSA. The EN to this heading provides:
(2) Made up fishing nets and other made up
nets, of textile materials.
* * *
Made up nets are nets, whether
or not ready for use, made directly
to shape or assembled from pieces
of netting. The presence of
handles, rings, weights, floats,
cords or other accessories does not
affect the classification of the
goods of this group.
Made up nets of this heading
are restricted to those nets not
covered more specifically by other
headings of the Nomenclature. The
heading includes fishing nets....
The heading does not cover:
* * *
(c) Sports nets (e.g., goal nets and tennis
nets), fish landing nets and other nets
of Chapter 95.
Heading 9507, HTSUSA, provides for, inter alia, fish landing
nets, butterfly nets and similar nets. The EN to this heading
describes these nets as "usually consist[ing] of pocket-like nets
of textile yarn or cord, mounted on a wire support and fixed to a
handle." Therefore, if we consider the crab nets to be similar
to the fish landing nets, classification in heading 9507 would be
mandated.
In HRL 087173 of September 18, 1990, we held that cast nets
used to catch bait were excluded from heading 5608, HTSUSA, and
were properly classified in heading 9507, HTSUSA. The
merchandise in that ruling was described as a hand-cast string
drawn fishing net,
approximately six feet in diameter with a 1/2
inch mesh size and weighted with lead. It is
made of an open mesh construction with
knotted monofilament yarn of man-made fiber.
The subject net is commonly known as a cast
net and its principle use in the United
States is to catch bait fish, such as
minnows. While this type of net may be used
by commercial bait shops, it is principally
used by sports fishermen to catch bait.
The ruling went on to state:
You [the importer] have suggested that the
cast net at issue is excluded from heading
5608 because it is used by sports fisherman
to catch bait and thus, should be considered
a sports net. We agree that cast nets are
principally used in the United States by
sports fisherman to catch bait. Furthermore,
you contend that the fishing nets encompassed
by heading 5608 are limited to commercial
fishing nets and that the cast net at issue
is excluded since its principle use is not
commercial, but recreational.
HRL 087173 based the cast net's exclusion from heading 5608,
HTSUSA, on two basic points. First, in stating that the nets are
"principally used by sports fishermen," HRL 087173 reasoned that
the nets should "fall within the [Explanatory Note] exclusion for
sports nets." Heading 9506, HTSUSA, provides for articles and
equipment for sports. These sports include skiing, golfing,
ping-pong, tennis, badminton, baseball, polo, ice skating,
football, etc. Badminton nets are the only nets provided for eo
nomine. It is clear that nets for these sports in no way
resemble, and are therefore not similar to, cast nets.
Additionally, the National Import Specialists for both sports
equipment and nets agree that the Explanatory Note exclusion for
"sports nets" is separate and distinct from the exclusion for
"fish landing nets and similar nets." HRL 087173's merging of
the two into an exclusion for "sports nets similar to fish
landing nets" was therefore incorrect.
The cast nets do not qualify for the exclusion as fish
landing nets. Heading 9507 provides for fish landing nets. The
Explanatory Note to heading 9507 describes them as "usually
consist[ing] of pocket-like nets ... mounted on a wire support
and fixed to a handle." The Random House Dictionary of the
English Language (unabridged) defines a landing net as "a small,
bag-shaped net with a handle at the mouth, for scooping a hooked
fish out of the water and bringing it to shore or into a boat."
The cast net clearly does not resemble the landing net in design,
construction, or use. It is cast out upon the waters and drawn
back to the fisherman, hopefully full of minnows. Except for the
size of the fish and the size of the mesh, this is essentially
how a net is used by a commercial fisherman.
In Pier I Imports, Inc. v. United States, 83 Cust. Ct. 43,
C.D. 4819 (Aug. 24, 1979) (TSUS), the U.S. Customs Court
established the common and commercial meaning of fishnets as nets
for catching fish, as opposed to material resembling fishing
nets. See Webster's Third New International Dictionary of the
English Language, Unabridged (1966) (containing the definition
the Court adopted). Therefore, "only commercial fishing nets and
fish netting were encompassed in the ... provisions [for fishing
nets]," and "netting which is not suitable for commercial
fishing" (i.e., decorative fish netting for hanging on walls) are
classified in the provisions for other nets.
In light of this language, HRL 087173's second point was
that only nets principally used for commercial fishing were
classifiable as "made up fishing nets." This conclusion
demonstrates a misreading of the Pier I Imports decision. In
stating that "only commercial fishing nets and fish netting [(as
opposed to netting for decorative display, which was the
merchandise at issue)] were encompassed in the ... provisions
[for fishing nets]," the Court was distinguishing between the
nets' capabilities to catch fish, not creating an tariff-based
distinction between commercial and recreational fishing. Indeed,
the Court repeatedly stated that the merchandise "was not
sufficiently durable for use in catching fish." See HRL 060802,
C.S.D. 80-224, 14 Cust. B. & Dec. 1128 (Feb. 8, 1980) (following
Pier I Imports in holding that an aquarium net, irrespective of
its user, is a net "not suitable for commercial fishing"). HRL
087173's extension of Pier I Imports' "suitable for commercial
fishing" to "principally used" by commercial fishermen was
incorrect; accordingly, HRL 087173 is hereby revoked. The
recipient of HRL 087173 is being made aware of this decision in
HRL 951480 of this date.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 5608.90.1000, HTSUSA, as knotted
netting of twine, cordage or rope; made up fishing nets and other
made up nets, of textile materials, other, fish netting and
fishing nets. The applicable rate of duty is 17 percent ad
valorem.
This decision should be mailed by your office to the
internal advice requestor no later than 60 days from the date of
this letter. On that date, the Office of Regulations & Rulings
will take steps to make the decision available to Customs
Personnel via the Customs Ruling Module in ACS and to the public
via the Diskette Subscription Service, Lexis~, Freedom of
Information Act (FOIA), and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division