CLA-2 CO:R:C:T 951480 HP
Mr. Salvatore Caramagno
Ross & Hardies
888 16TH Street, N.W.
Washington, D.C. 20006-4103
RE: Notification of Revocation of HRL 087173 by HRL 950561.
Dear Mr. Caramagno:
This is further to your letter of May 8, 1990. That letter
concerned the tariff classification, under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), of fishing
nets, produced in Taiwan. Please reference your client Blue
Ribbon Products.
FACTS:
The merchandise at issue consists of a net, approximately
six feet in diameter, with a 1/2" 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, used to catch bait such as minnows.
In HRL 087173, we classified this net under subheading
9507.90.6000, HTSUSA, as a net similar to fish landing nets and
sports nets. This subheading was preferred over heading 5608,
HTSUSA, which provides for, inter alia, made up fishing nets and
other made up nets. Pursuant to section 625, Tariff Act of 1930
(19 U.S.C. 1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation of
HRL 087173 was published on February 16, 1994, in the Customs
Bulletin, Volume 28, Number 7.
ISSUE:
Whether the classification under the HTSUSA of the cast nets
as similar to sports nets was correct?
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 HTSUSA constitute the official
interpretation of the tariff at the international level. While
not legally binding, they do represent the considered views of
classification experts of the Harmonized System Committee. 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 a net to be similar to the
fish landing nets, classification in heading 9507 would be
mandated.
In HRL 087173, we held that the cast nets were excluded from
heading 5608, HTSUSA, and were properly classified in heading
9507, HTSUSA. 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 fishermen
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 fishermen 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.
In our response to a Request for Internal Advice by the
Area Director, Newark, on the tariff classification of crab nets
(HRL 950561 of this date), we stated:
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' capability 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.
A copy of this ruling may be requested by following
procedures outlined in the Freedom of Information Act, 5 U.S.C.
552.
Uniform and Established Practice
You have argued that "an established and uniform practice
has developed with respect to these fish nets pursuant to the
issuance of HRL087173 [sic.]. Section 177.10(c)(1) of the
Customs Regulations, states that:
Before the publication of a ruling which has
the effect of changing a practice and which
results in the assessment of a higher rate of
duty, notice that the practice (or prior
ruling on which the practice is based) is
under review will be published in the Federal
Register and interested parties will be given
an opportunity to make written submissions
with respect to the correctness of the
contemplated change.
See also Section 315(d), Tariff Act of 1930, as amended.
Established practice must be shown by positive evidence. Sturm,
A Manual of Customs Law (1974), at 201. "It is not established
by the rulings of one or two collectors [ports] as to a few
shipments...." Id., citing, inter alia, United States v. H.
Reeve Angel & Co., Inc., 33 CCPA 114, C.A.D. 324 (1946), cert.
den. 328 U.S. 835 (1946).
In your letter of July 23, 1993, you submitted lists of
three companies' entries of cast nets. You stated that these 80
liquidations occurred from approximately February of 1991 through
the present. You argue that these liquidations are evidence of
an established and uniform practice by the Customs Service of
classifying cast nets within heading 9507, HTSUSA. For the
following reasons, we disagree.
Prior to the issuance of HRL 087173, cast nets such as these
were consistently classified either as articles of lead (via
chief value) or as fishing nets of textiles. See, e.g., HRL
045042 of April 2, 1976.
NYRL 832770 of November 1, 1988, and NYRL 833536 of December
9, 1988, classified cast nets under heading 5608, HTSUSA, as
nets of textile materials.
On October 1, 1992, the National Import Specialist (NIS) for
this type of merchandise surveyed Customs field personnel
with respect to classification of this merchandise in fiscal
years 1991 and 1992. Six ports have been entering cast
nets: 2 under heading 9507, 3 under heading 5608, and 1
under both headings.
On August 20, 1993, the NIS performed a computer search of
entries from January, 1992 to July, 1993. Nine different
importers entered cast nets under heading 5608, HTSUSA, one
of which is a company you submitted evidence for in your
July 23, 1993, letter, supra.
Judging from the above, it is apparent that the cast nets
have not been classified in accordance with an established and
uniform practice of classification, but rather have been subject
to disparate Customs treatment under the HTSUSA. Your claim that
the aforementioned list of liquidations constitutes evidence of a
practice therefore is appropriately denied.
HOLDING:
As a result of the foregoing, the merchandise at issue is
classified under subheading 5608.11.0010, HTSUSA, as knotted
netting of twine, cordage or rope; made up fishing nets and other
made up nets, of textile materials, of man-made textile
materials, made up fishing nets, hand-cast, string-drawn. The
applicable rate of duty is 17 percent ad valorem.
This letter should be considered a notice of revocation of
HRL 087173 of September 18, 1990, by HRL 950561. In accordance
with section 625, this ruling will become effective 60 days after
its publication in the Customs Bulletin. Publication of rulings
or decisions pursuant to section 625 does not constitute a change
of practice or position in accordance with section 177.10(c)(1),
Customs Regulations (19 C.F.R. 177.10(c)(1).
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division