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HQ 954821




November 8, 1994

CLA-2 CO:R:C:T 954821 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5407.72.0060

District Director
U.S. Customs Service
200 East Bay Street
Charleston, South Carolina 29401

RE: Protest with Application for Further Review #1601-93-100094;

Dear Ms. Pollock:

This is in response to the timely filed protest with application for further review by XXXXXXX Corporation against your decision to classify two styles of merchandise as woven fabric of heading 5407, HTSUSA. Protestant seeks classification of the merchandise, described as casing nets and growing nets, as parts of agricultural machinery in subheading 8436.99.0090, HTSUSA, or as machinery, equipment or implements for agricultural or horticultural purposes in subheading 9817.00.5000, HTSUSA, or as parts of articles classified in headings 8432, 8433, 8434 or 8436, HTSUSA, in subheading 9817.00.6000, HTSUSA, or as belting in subheading 5910.00.1090, HTSUSA, which is the heading under which the merchandise was entered.

FACTS:

A sample of style 66475 (tunnel net) was furnished to this office and a sample of style 66703 was furnished in another file (HRL 956621). Both styles were imported in material lengths and are utilized in the cultivation of mushrooms.

Style 66703, described as a growing net, is a 100 percent polyethylene woven fabric [we assume its woven from filament yarns]. The fabric weighs 310 g/mý and may be imported in widths ranging from 137 to 149 centimeters (cm.). According to the submitted brochure on these goods, this fabric is air permeable. Additionally, the brochure indicates this type of net is available with coating, however, we assume the growing net at issue is not coated. It appears from the file that the growing nets subject to this protest are 157 cm wide.

Style 66475, described as a heavy-duty casing net or tunnel net, is a 100 percent polypropylene woven fabric [we assume its woven from filament yarns]. [ A letter of September 21, 1992, from the Nicolon Corporation indicates that style 66475 is actually a tunnel net, not a casing net.] The fabric weighs 810 g/mý and is available in standard widths of 242 cm., 282 cm., 300 cm. and 305 cm. The tunnel nets subject to this protest are 400 cm and 242 cm in width.

The protestant entered styles 66703 and 66475 under subheading 5910.00.1090, HTSUSA, which provides for transmission or conveyor belts or belting, of man-made fibers, other. The duty rate for this provision is 8 percent ad valorem and no quota category is applicable.

Protest was filed against your reclassification of the merchandise as dyed woven fabric of synthetic filament yarn weighing more than 170 g/mý of subheading 5407.72.0060, HTSUSA. Goods classified in this provision are dutiable at 17 percent ad valorem and fall within textile quota category 620.

The protestant agreed at the time of filing the protest that the original classification at entry was incorrect and submitted proper classification as parts of agricultural machinery in subheading 8436.99.0090, HTSUSA, or as machinery, equipment or implements for agricultural or horticultural purposes in subheading 9817.00.5000, HTSUSA, or as parts of articles classified in headings 8432, 8433, 8434 or 8436, HTSUSA, in subheading 9817.00.6000, HTSUSA. However, by letter dated September 3, 1993, the protestant amended the protest and seeks classification of the merchandise as belting of subheading 5910.00.1090, HTSUSA, should the other submitted alternate classifications be disallowed.

ISSUE:

Are styles 66703 and 66475 classifiable as woven fabric of subheading 5407.72.0060, HTSUSA, or as parts of agricultural machinery in subheading 8436.99.0090, HTSUSA, or as machinery, equipment or implements for agricultural or horticultural purposes in subheading 9817.00.5000, HTSUSA, or as parts of articles classified in headings 8432, 8433, 8434 or 8436, HTSUSA, in subheading 9817.00.6000, HTSUSA, or as belts or belting of subheading 5910.00.1090, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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 and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

In Headquarters Ruling Letter (HRL) 956621 of September 28, 1994, addressed to the same party protesting herein, Customs ruled on the classification of two styles of mushroom growing nets (fabrics) for the same party involved herein. In fact, style 66703 at issue here, was one of the fabrics ruled upon in HRL 956621. In that ruling Customs rejected classification of the merchandise at issue therein in subheading 8432.90.0080, HTSUSA, as parts of agricultural machinery.

In HRL 956621, previous case law was cited for the proposition than "goods which remain material when entered are not classifiable as a particular, identifiable article unfinished." [Bold added]. These cases were: The Harding Co. et. al. v. United States, 23 CCPA 250, T.D. 48109 (1936) (rolls of brake lining held to be material because the identity of the individual brake linings was not fixed with certainty); American Import Co. v. United States, 26 CCPA 72, 75, T.D. 49612 (1938) (lengths of silk fishing leader gut classified as manufactures of silk rather than unfinished leaders); F.H. Paul & Stein Bros., Inc. v. United States, 44 Cust. Ct. 130, C.D. 2166 (1960) (rolls of aluminum foil without lines of demarcation held to be material and not articles featuring an electrical element or device); Sandvik Steel, Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321 F. Supp. 1031 (1971) (knife steel coils with no lines of demarcation, requiring cutting to length, held to be material rather than unfinished blades); Naftone, Inc. v. United States, 67 Cust. Ct. 341, C.D. 4294 (1971) (rolls of plastic film without demarcations, having only one use, held to be insulating material).

In HRL 087849 of May 22, 1991, Customs ruled on the classification of certain belting used with harvesting equipment. In discussing classification within heading 9817.00.60, HTSUSA, the ruling discusses the term "parts" and when material may be considered an article or a part. Citing Lee Enterprises, Inc. v. United States, 84 Cust. Ct. 208, c.d. 4860, and Bendix Mouldings, Inc. v. United States, 73 Cust. Ct. 204, C.D. 4576, 388 F. Supp. 1193 (1974), Customs stated in HRL 087849:

"Since goods which are material when entered are classified as material, these goods are not "parts". "Parts" are integral, constituent components of a larger entity and "material" lacks the essential character of an integral, constituent article. Where the identity of an imported article is not fixed with certainty it will be regarded as material and not as an unfinished article or a

In the instant case, as in HRL 956621, the merchandise at issue is imported in material lengths with no lines of demarcation. After importation, the fabrics will be cut to the proper length, and perhaps even to width, depending on the needs of the individual purchaser. The imported fabrics are not in their final shape, nor are their identities fixed with certainty. As pointed out by the Customs National Import Specialist who deals with this commodity, the goods are not restricted or dedicated to a particular use. These fabrics may be used for various commercial purposes. Following the cited case law and Customs decisions in HRL 087849 and 956621, styles 66703 and 66475 are not classifiable as "parts" or as unfinished articles. These goods are still in material form. As they are not "parts", the goods at issue are not classifiable as parts of agricultural machinery in subheading 8436.99.0090, HTSUSA; nor are the goods classifiable in subheading 9817.00.60, HTSUSA, as parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436, whether or not such parts are principally used as parts of such articles and whether or not covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c).

Subheading 9817.00.50, HTSUSA, provides for "machinery, equipment and implements to be used for agricultural or horticultural purposes". Chapter 98, Subchapter XVII, U.S. Note 2(e) provides:

The provisions of headings 9817.00.50 and 9817.00.60 do not apply to:
articles of textile material.

Clearly styles 66703 and 66475 are not machinery, nor does Customs consider these goods to fall within the common understanding of equipment or implement. See, F.W. Myers & Co., Inc. v. United States, 9 C.I.T. 19, 615 F. Supp. 569 (1985)(see footnote 1 for discussion and citations). Additionally, we believe equipment and implements are articles and as styles 66703 and 66475 are of textile material, if articles, they are excluded.

The last alternate classification sought by the protestant is subheading 5910.00.1090, HTSUSA, which provides for transmission or conveyor belts or belting, of textile material, whether or not reinforced with metal or other material, of man- made fibers, other than power transmission belts and belting.

Note 6, Chapter 59 states that heading 5910 does not apply to:

Transmission or conveyor belting, of textile material, of a thickness of less than 3 mm; or

Transmission or conveyor belts or belting of textile fabric impregnated, coated, covered or laminated with rubber or made from textile yarn or cord impregnated, coated, covered or sheathed with rubber (heading 4010).

We have examined a sample of style 66703 which was submitted for file HRL 956621. The sample clearly has a thickness of less than 3 mm and therefore cannot be classified as conveyor belting. After checking with Baycor, a division of the Nicolon Corporation, Customs was informed that style 66475 has a thickness of 3.81 mm. Thus, style 66475 is not precluded from classification in 5910, HTSUSA, by Note 6, Chapter 59.

The EN for heading 5910 state, in pertinent part:

These transmission or conveyor belts or belting are used for the transmission of power or the conveyance of goods. They are usually woven or plaited from yarns of wool, cotton, man-made fibres, etc. They are in various widths and may be in the form of two or more plies of such material woven or bonded together; sometimes they are woven with a short looped pile surface or with corded edges. * * * [Emphasis added].

By letter of September 21, 1992, the protestant supplied Customs with information regarding the goods at issue. In regard to style 66475, the letter clarified that that style was "actually a tunnel net" and that "[t]he use for tunnel nets is in the storage of the compost." Its use was further explained as follows:

In layman's terms the compost is filled in a box car like room and sits on the tunnel net for a given period of time in order for the compost to cure. When the compost is ready to be transferred from the storage room, the tunnel nets serve as a conveyor to move the product.

In order to be classified as conveyor belting of heading 5910, HTSUSA, style 66475 must be principally used for the conveyance of goods. Additional U.S. Note 1(a) to the HTSUSA provides that in the absence of special language or context which would require otherwise:
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. -6-

In this case, it seems that the principal use of style 66475 (a tunnel net) is the storage of compost for curing. We note that when the compost is ready to be moved from the storage room, the tunnel net is used to move the compost, but that appears to be an additional function as opposed to the principal function of the fabric. As it is not principally used for the conveyance of goods, style 66475 is not classifiable as conveyor belting.

The last provision at issue is subheading 5407.72.0060, HTSUSA, which provides for:

Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: other woven fabrics, containing 85 percent or more by weight of synthetic filaments: dyed, weighing more than 170 g/mý.

This provision specifically provides for the goods at issue and they are properly classified therein. Goods classified in this subheading fall within textile category 620 and are dutiable at a rate of 17 percent ad valorem.

HOLDING:

The protest should be denied in full.

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 mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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