CLA-2 CO:R:C:T 956129 HP
Mr. Robert Richter
District Director
U.S. Customs Service
1 East Bay Street
Room 104
Savannah, GA 31401
RE: Application for Further Review of Protest 1703-94-100017;
nets
Dear Mr. Richter:
This is in reply to your Memorandum of March 10, 1994. That
memo forwarded a timely filed Application for Further Review of
Protest 1703-94-100017. That Protest concerned the tariff
classification, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of hand-cast, string-drawn
fishing nets, produced in Indonesia.
FACTS:
The merchandise at issue consists of hand-cast, string-
drawn fishing net, six feet in diameter, with a 1/2" mesh size,
and weighted with lead. Protestant claims classification within
subheading 9507.90.6000, HTSUSA, as fish landing nets, butterfly
nets and similar nets. You disagree, placing the nets under
subheading 5608.11.0010, HTSUSA, as made up fishing nets of
textile materials.
ISSUE:
Whether the nets are appropriately classified as similar to
fish landing nets or to made up fishing nets under the HTSUSA?
LAW AND ANALYSIS:
Protestant argues that classification of the cast nets
within heading 9507 is required for two reasons. First, the nets
were classified according to the position set forth in HRL 087173
of September 18, 1990. Secondly, classification of the nets
within heading 5608 is contrary to an established and uniform
practice of classifying the nets within heading 9507, HTSUSA.
HRL 087173
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, 15 Int'l Trade Rep.
(BNA) 1188, 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 a cast net to be similar to
the fish landing nets, classification in heading 9507 would be
mandated.
In HRL 087173, issued to a third party, 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 HRL 951480 of March 28, 1994, 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 [sic.] 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.
Irrespective of our Notice of Proposed Revocation of HRL
087173 in the Customs Bulletin, that ruling remained effective
until actually revoked. See Section 177.9(a), Customs
Regulations (19 C.F.R. 177.9(a)). Had Protestant been the
ruling letter's recipient, its reliance upon the principles of
HRL 087173 would have been well grounded in law. Section
177.9(b), Customs Regulations. Since Protestant was not that
recipient, and since you have noted various New York Ruling
Letters (still in effect and issued to yet other third parties )
classifying identical merchandise under heading 5608, HTSUSA, you
were correct in not considering HRL 087173 binding upon the
instant entries. We agree with your classification.
Established and Uniform Practice
In HRL 951480, supra, we addressed this issue as follows:
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.
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. Protestant's
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.
You are instructed to deny the protest. 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 the
mailing of the decision. Sixty days from the date of the
decision the Office of Regulations & Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS, and to the public via the Diskette
Subscription Service, Lexis~, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division