CLA-2 RR:CR:TE 963743 RH
Area Port Director
U.S. Customs Service
2831 Talleyrand Avenue
Jacksonville, Florida 32206
RE: Protest number 1803-99-100186; Netting; Heading 9506; Heading 5608
Dear Sir:
This is in reply to your memorandum of February 23, 2000, forwarding Application for Further Review of Protest (AFR) number 1803-99-100186 to our office for a decision.
Kuehne & Nagel, Inc., filed the AFR, on behalf of Garware Wall Ropes, Ltd., against Customs classification of one entry of density polyethylene netting.
FACTS:
The protestant entered the merchandise on May 24, 1999, under subheading 9506.99.3000 of the Harmonized Tariff Schedule of the United States (HTSUS), as tennis equipment.
On June 24, 1999, Customs issued a Proposed Notice of Action on Customs Form 29 (CF 29), advising the protestant that it intended to classify the netting
under subheading 5608.19.2090, HTSUS, as knotted netting of man-made textile materials, and provided the protestant an opportunity to respond. The protestant did not reply to Customs notice.
Thereafter, Customs liquidated the entry on August 13, 1999, classifying the merchandise in question under subheading 5608.19.2090, HTSUS.
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The protest was timely filed on September 1, 1999, and further review is warranted pursuant to 19 CFR §§174.24 and 174.25.
FACTS:
The protestant states that the netting in question is high-density polyethylene, black in color and treated with an ultra-violet protectant so that long term exposure to the sun will not cause the fabric to fade or crack.
Invoice EX/D/03262, attached to the entry, is consistent with the protestant’s description of the merchandise - density polyethylene twisted “tennis nets” and density polyethylene braided “tennis nets.”
ISSUE:
Is the merchandise classifiable under subheading 5608.19.2090, HTSUS, as knotted netting of man-made textile materials, or under subheading 9506.99.3000, HTSUS, as tennis equipment?
LAW AND ANAYLSIS:
Classification of goods under the HTSUS 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. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the
proper interpretation of the Harmonized Tariff System (HTS). Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35128 (August 23, 1989).
Heading 5608, HTSUS, provides for “Knotted netting of twine, cordage or rope; made up fishing nets and other made up nets, of textile materials.”
Heading 9506, HTSUS, provides for “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof.”
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Articles of chapter 95 (for example, toys, games, sports requisites and nets) are excluded from classification within Section XI, HTSUS. Note 1(t), Section XI, HTSUS. Additionally, the EN to heading 5608, HTSUS, state, in pertinent part, that the heading does not cover:
Sports nets (e.g., goal nets and tennis nets) fish landing nets and other nets of Chapter 95.
Thus, if the netting in question is a tennis net, it is excluded from classification in heading 5608, HTSUS. We found no Customs rulings addressing the issue of tennis nets of heading 9506, HTSUS, compared to netting of heading 5608, HTSUS.
The protestant states that at the time of importation the netting is ready to be installed to the posts in the center of a tennis court. However, Customs examined a sample of the netting and it had no features or additions that identified it as a tennis net, or distinguished it as a tennis net from various other netting imported by the protestant.
We note that on February 2, 2000, Customs sent a request to the protestant asking for additional information to support its protest, specifically an explanation of what the numbers mean on Invoice EX/D/03262, a statement of any other uses of the imported netting, and a statement regarding the end use of the netting. Again, the protestant failed to respond to Customs request.
Accordingly, based on the lack of evidence provided by the protestant to substantiate its claim that the merchandise in question is a tennis net and Customs examination of the merchandise, we find that Customs correctly classified the netting under subheading 5608.19.2090, HTSUS.
HOLDING:
The protest is DENIED. Customs correctly liquidated the merchandise under subheading 5608.19.2090, HTSUS, which provides for “Knotted netting of twine,
cordage or rope; made up fishing nets and other made up nets, of textile materials: Of man-made textile materials: Other: Other: Other.” The netting is dutiable at the general column one rate of duty under the 1999 HTSUS, at 7.5 percent ad valorem. The textile category is 229.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
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Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division