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HQ 950561


March 28, 1994

CLA-2 CO:R:C:T 950561 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 5608.90.1000

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

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