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HQ 964726




May 1, 2002

CLA-2 RR:CR:GC 964726 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7314.31.50, 7314.19.00

Port Director
U.S. Customs Service
1000 2nd Ave.
Suite 2100
Seattle, WA 98104-1049

RE: Protest 3001-00-100283; Woven and welded hardware cloths

Dear Port Director:

This is our decision on Protest 3001-00-100283, filed on behalf of Ace Hardware Corporation, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of woven and welded hardware cloths. The entries were liquidated on May 19, 2000, July 7, 2000, and August 4, 2000. This protest was timely filed on August 17, 2000.

FACTS:

The protest concerns the classification of numerous models of woven and welded hardware cloths. The articles are made of zinc coated (galvanized) steel wire. The hardware cloths of woven construction is made from 27 gauge (0.0173”; 0.439 mm) wire and has a 1/8” x 1/8” mesh. It is imported in widths of 24”, 30” and 36”. The woven hardware cloths are imported in 50 foot or 100 foot rolls. The welded hardware cloths are made from 23 gauge (0.0258”; 0.655mm) wire and has a ¼” x ¼” mesh. It is imported in widths of 24”, 30”, 36” and 48”. The welded hardware cloths are imported in 50 foot rolls.

The Customs Laboratory reports (8-2000-20733-001 and 8-200-20734-001, dated November 17, 2000) provided is from an entry not subject to this protest. However the products analyzed in the laboratory reports were the same model numbers as are subject to this protest. Although the construction (woven and welded) and mesh sizes reported in the laboratory analysis are in agreement with the product descriptions for the instant articles, the wire sizes differ as follows:

27 gauge: 0.33 mm (lab) v. 0.439 (protest) 23 gauge: 0.5 mm (lab) v. 0.655 mm (protest) 19 gauge: 0.97 mm (lab) v. 1.041 mm (protest)

At the time of liquidation, both the woven and welded hardware cloths were classified under subheading 7314.20.00, HTSUS.

ISSUE:

What is the classification of the woven and welded hardware cloths?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

7314 Cloth (including endless bands), grill, netting and fencing, of iron or steel wire; expanded metal of iron or steel:

Woven cloth:

7314.19.00 Other:

7314.20.00 Grill, netting and fencing, welded at the intersection, of wire with a maximum cross-sectional dimension of 3 mm or more and having a mesh size of 100 cm2 or more

Other grill, netting and fencing, welded at the intersection:

7314.31 Plated or coated with zinc:

7314.31.10 Wire fencing plated or coated with zinc, whether or not covered with plastic material

7314.31.50 Other

Other grill, netting and fencing:

7314.41.00 Plated or coated with zinc

Both the woven and the welded hardware cloths were originally liquidated under subheading 7314.20.00, HTSUS. This heading describes wire with a maximum cross-sectional dimension of 3 mm or more and having a mesh size of 100 cm2 or more. The protestant and Customs agree that subheading 7314.20.00, HTSUS, is not applicable because the dimensional requirements of the provision are not met and the woven wire is not “welded at the intersection.” We concur with this conclusion.

The importer argues that the woven hardware cloth should be classified in subheading 7314.41.00, HTSUS, and the welded hardware cloth should be classified in subheading 7314.31.10, HTSUS. The importer states that all of the hardware cloths are principally used as fencing.

Concerning the woven hardware cloths, the importer cites NY 879162 (November 2, 1992), which involved universal field fencing. That fencing was composed of a hinged joint type, rectangular-shaped mesh fabric made of round wire. That product had several horizontal wires which were secured in position with vertical stay wires by means of knots which acted as hinges. This is not same type of product as in the instant case. The subject woven hardware cloths are not made with knots that act as hinges. Accordingly, NY 879162 is not relevant to the classification of these goods.

In further support of their classification, the importer also cites HQ 084722 (August 25, 1989) and NY 810807 (June 23, 1995). Customs does not believe that these rulings are relevant. Both involve “steel wire netting of the type commonly known as poultry netting” and classify the article in subheading 7314.41.00, HTSUS. Poultry netting is made from steel wire that is twisted and formed into a hexagon pattern netting. HQ 084722 cites the EN for subheadings 7314.12, 7314.13, 73114.14, and 7314.19, which states:

The term “woven cloth” applies only to wire products manufactured in the same manner as textile woven fabrics, with two thread systems crossing at right angles.

HQ 084722 held that the poultry wire did not meet the requirements of the EN and, therefore, could not be considered within subheading 7314.19, HTSUS. The articles, therefore, fell within subheading 7314.41, HTSUS. The instant case is the reverse. The subject woven hardware cloths are manufactured in the manner of textiles with two strands crossing at right angles. This fits the requirements of the EN cited above. Therefore, for the woven hardware cloths, subheading 7314.19, HTSUS, is applicable. Therefore, we find that the woven hardware cloths are classifiable in subheading 7314.19.00, HTSUS, which provides for cloth (including endless bands), grill, netting and fencing, of iron or steel wire, woven cloth, other.

Concerning the welded hardware cloths, the importer states that the articles will be used primarily for “fencing”. Therefore, the importer believes that the proper classification is in subheading 7314.31.10, HTSUS, which covers only wire fencing. However, Customs has found considerable evidence that this type of article is subject to many various uses besides that of fencing. Customs has determined that welded hardware cloth similar to the instant article is advertised as used for cages for small animals and birds, machine guards, feed racks and flooring, silo bins, ventilation and drying ducks trailer sides, reinforcement for stucco and concrete, trellises, grills and tree guards. See, e.g.,“DURA-FENCE” by Steel City Corp., www.scity.com/fenceandpost.html; www.wiremesh.co.uk/mesh4.htm by Potter & Soar; www.gdcrookswire.com/galvanized.htm by GDC/Crooks Wire Products; www.fpsmith.com/welded.htm by F.P. Smith Wire Cloth Co. Principal use of the welded hardware cloth as wire fencing is undocumented in the record. Therefore, because Customs finds that the welded hardware cloths have multiple uses, we find the correct classification to be in subheading 7314.31.50, HTSUS, which provides for cloth (including endless bands), grill, netting and fencing, of iron or steel wire, other grill, netting and fencing, welded at the intersection, plated or coated with zinc, other.

HOLDING:

In accordance with the above discussion, the woven hardware clothes are classified in 7314.19.00, HTSUS, which provides for cloth (including endless bands), grill, netting and fencing, of iron or steel wire, woven cloth, other. The welded hardware cloths are classified in subheading 7314.31.50, HTSUS, which provides for cloth (including endless bands), grill, netting and fencing, of iron or steel wire, other grill, netting and fencing, welded at the intersection, plated or coated with zinc, other.

The protest should be DENIED. 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.

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,

John Durant, Director
Commercial Rulings Division


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