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NY C89579


July 17, 1998

CLA-2-RR:NC:TA:352 C89579

CATEGORY: CLASSIFICATION

Mr. Malcolm Pearson

Dicon Rose Inc.

346 1/2 Book Road

Grimsby, Ontario, Canada L3M 2M4

RE: Classification and country of origin determination for knitted open work fabric article used a protective net in conjunction with playing or practicing basketball; 19 C.F.R. §102.21(c)(2); tariff shift

Dear Mr. Pearson:

This is in reply to your letter dated June 30, 1998, requesting a classification and country of origin determination for protective net used in conjunction with playing or practicing basketball which will be imported into the United States.

FACTS:

The merchandise, designated as "Rolbak, The Original Basketball Protecto Net", is a net product that is designed to be installed behind the backboard of a basketball court for the purpose of protecting vehicles, buildings, shrubs and spectators from being hit or damaged by a basketball when in the course of a game or practice the ball would normally leave the court. The net portion of this product is made with 100% polypropylene textile filament yarns that have been knit into an open work fabric. The knit open work part of this item has been knit in China. The balance of the components that are used in the manufacture of this item have been manufacture in Canada. These parts include various metal and plastic mounting brackets and fasteners which facilitate the attachment of this product to the backboard supports. It also includes what appears to be a plastic sleeve or tube which is attached to the bottom of the knit netting and functions as a weighted base after being filled with water or sand for ballast.

ISSUE:

What are the classification and country of origin of the subject merchandise?

CLASSIFICATION:

Your correspondence suggests that you believe that this product should be classifiable in heading 9506, Harmonized Tariff Schedules of the United States (HTS), which provides for articles and equipment ...for athletics, other sports or outdoor games.... This is not possible. The "articles and equipment" of heading 9506, HTS, are generally considered to be the gear used by the player during the playing of a particular sport, or the apparatus needed in connection with the play of the sport, for example, a tennis divider net or a hockey goal cage.

In Nichemen Co., Inc. V. United States, 72 Cust. Ct. 130, C.D. 4514 (1974), the United States Customs Court ruled that netting designed for installation at specific golf driving ranges to keep balls from leaving the area of play was not golf or sports equipment despite being specifically designed for use in the game of golf because it was not "designed for use by the player during the course of play" and was unessential to the playing of the game. Although the nets were specifically cut to fit specific golf ranges and had no alternative uses, their "use in such location is not primarily to aid the players in the conduct of the sport of golf, and it is, therefore, not golf equipment". The "Rolbak " protective net is directly akin to the golf nets in Nichemen, Supra. The basketball protective net does not primarily aid the player in the conduct or practice of the sport and consequently is not considered to be basketball equipment or any other equipment within the scope of heading 9506, HTS.

Since this product is a composite article composed of textile fabric, plastic and metal components, we must determine which of the materials provide this item with its essential character. Based on the function of this article, the quantity of the various materials present and the relative values of the various materials, the essential character of this item has been imparted by the knit textile fabric.

The applicable subheading for the "Rolbak" net will be 6307.90.9989, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other made up articles...other, other, other, other, other. The rate of duty will be 7 percent ad valorem.

COUNTRY OF ORIGIN - LAW AND ANALYSIS:

On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. §3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.

Paragraph (c)(1) states that "The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced." As the subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.

Paragraph (c)(2) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign materials incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section:"

Paragraph (e) in pertinent part states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section":

HTSUS Tariff shift and/or other requirements

6307.90 The country of origin of a good classifiable under 6307.90 is the country, territory or insular possession in which the fabric comprising the good was formed by a fabric- making process

As the fabric that comprises this good was formed in a single country, that is, China, as per the terms of the tariff shift or other requirement, country of origin is conferred in China.

MARKING:

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the

U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

Section 134.46, Customs Regulations (19 C.F.R. §134.46), deals with cases in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

HOLDING:

The country of origin of the "Rolbak" protective net is China. This product is classifiable in subheading 6307.90.9989, HTS, which provides for other made up articles...other, other, other, other, other. The rate of duty will be 7 percent ad valorem.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 C.F.R. §177.9(b)(1). This sections states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 C.F.R. §177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 C.F.R. §177.2.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Tytelman at 212-466-5896.

Sincerely,


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