HQ 955597

May 31, 1994

CLA-2 CO:R:C:M 955597 RFA

CATEGORY: Classification

TARIFF NO.: 3920.10.00, 9817.00.50

District Director of Customs

610 South Canal Street

Chicago, IL 60607

RE: Protest 3901-93-101489; \"Stokbord\"; sheets of plastic;

9817.00.50; agricultural or horticultural purposes; HQs

083930, 086883, 087076, 089936, 952796

Dear District Director:

The following is our decision regarding the request for

further review of Protest 3901-93-101489, which concerns the

classification of Stokbord under the Harmonized Tariff Schedule

of the United States (HTSUS). The subject entry was liquidated

on June 25, 1993. The protest was timely filed on August 5,

1993\.

FACTS:

The merchandise, \"Stokbord\", is a particle-board like

product made from 100% low density polyethylene plastic with an

embossed surface texture plastic film heat-welded to the upper

and lower surfaces. It is not further worked. Stokbord is

imported in sheets measuring 42 inches by 40 inches and 43 inches

by 32 inches, in 1/2 inch thicknesses.

According to the literature which was provided, Stokbord can

be used by hog farmers as wear pads, which are used in farrowing

stalls so that a sow will not dig a hole in the ground and thus

possibly injure herself; as feed saver pads, which are slid under

feed bins to recover feed from being lost to the expanded metal

floor below as the animal eats; as creep mats, which serve as

material upon which hogs sleep; as liners for livestock trailers;

as gates/doors for finishing pens and farrowing crates; and other

uses for raising livestock.

Classification of Stokbord sheets was previously addressed

in HQ 952796, dated January 29, 1993. That ruling concerned

Stokbord imported in sheets measuring 4 feet by 8 feet, which,

after importation, would be cut into specific sizes to suit their

intended use. Customs determined that, as imported, Stokbord

sheets measuring 4 feet by 8 feet, did not have the essential

character of a complete or finished article which is used in

agriculture and therefore was not eligible for duty-free

treatment under heading 9817.00.50, HTSUS.

The subject merchandise was entered under subheading

3920.10.00, HTSUS, as plastic sheeting, eligible for duty-free

treatment under heading 9817.00.50, HTSUS, as agricultural or

horticultural equipment or implements. The entry was liquidated

as ineligible for duty-free treatment under subheading

3920.10.00, HTSUS.

The classification categories under consideration are as

follows:

3920.10.00: Other plates, sheets, film, foil and strip,

of plastics, noncellular and not reinforced,

laminated, supported or similarly combined

with other materials: \[o\]f polymers of

ethylene. . .

Goods classifiable under this provision have a general,

column one rate of duty of 4.2 percent ad valorem.

9817.00.50 Machinery, equipment and implements to be

used for agricultural or horticultural

purposes . . . .

Goods classifiable under this provision have a general,

column one free rate of duty.

ISSUE:

Does Stokbord, cut to specific sizes, qualify for duty-free

treatment as agricultural or horticultural implements under

heading 9817.00.50, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. GRI 1 provides that classification shall be

determined according to the terms of the headings and any

relative section or chapter notes.

Heading 9817.00.50, HTSUS, grants duty-free treatment for

\"\[m\]achinery, equipment and implements to be used for

agricultural or horticultural purposes. . .\". This is an actual

use provision. See HQ 083930 (May 19, 1989). To fall within

this special classification, a three-part test must be met.

First, the subject merchandise must not be excluded from the

heading under Section XXII, Chapter 98, Subchapter XVII, U.S.

Note 2, HTSUS. Secondly, the terms of the headings must be met

in accordance with GRI 1. Thirdly, the article must comply with

the actual use provision required under section 10.131 through

10.139, Customs Regulations (19 CFR 10.131 through 10.139). See

HQ 086883 (May 1, 1990); HQ 087076 (June 14, 1990); HQ 089936

(November 15, 1991).

The first part of the test is to determine whether Stokbord

is excluded from heading 9817.00.50, HTSUS. To do this we must

determine under which subheading it is classified. In HQ 952796,

Customs determined that Stokbord was classifiable as sheets of

plastic under subheading 3920.10.00, HTSUS, according to

information in U.S. Customs Laboratory Report No. 3-92-20046-001,

dated November 15, 1991. This subheading is not excluded from

classification in heading 9817.00.50, HTSUS, by operation of

Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2.

The second part of the test calls for Stokbord to be

included within the terms of heading 9817.00.50, HTSUS, as

required by GRI 1. Stokbord must be \"machinery\", \"equipment\" or

\"implements\" used for \"agricultural or horticultural purposes\".

Webster\'s II New Riverside University Dictionary (1988), defines

machinery, equipment, implement, agriculture and horticulture as

follows:

Machinery: 1. Machines or machine parts in general. 2.

The working parts of a machine. 3. A system

of related elements that operates in a

definable way.

Equipment: 1. The act of equipping or state of being

equipped. 2. Something with which one is

equipped.

Implement: 1. A tool, utensil, or instrument for doing a

task. 2. An article used to outfit or equip.

Agriculture: The science, art, and business of cultivating

the soil, producing crops, and raising

livestock.

Horticulture: The science, art, and business of cultivating

fruits, vegetables, flowers, and plants.

For this part of the test, the initial determination to be

made is what agricultural or horticultural pursuit is in

question. In HQ 952796, Customs determined that the Stokbord

which assists in raising swine by its use as a floor mat, wall

liner, and for easy sanitary maintenance, is clearly an

agricultural pursuit.

The next determination to be made is whether the subject

merchandise is \"machinery\", \"equipment\" or \"implement\". In HQ

952796, Stokbord was imported in standard form, in sheets

measuring 4 feet by 8 feet, which would then be cut to size

before they are put to their intended use. Citing GRI 2(a),

Customs concluded as follows:

We find that the Stokbord as imported is not an

unfinished article because it does not have the

essential character of a complete or finished article

which is used in agriculture. As a sheet, the identity

of the Stokbord is not fixed with certainty. Even

though articles made from it are intended for use in

the care and keeping of hogs in its condition as

imported, the Stokbord does not have the requisite

attributes of an agricultural implement.

Therefore, the merchandise does not meet the

second part of the test for classifying an item in

heading 9817.00.50, HTSUS. We find that the Stokbord

as imported does not qualify for duty-free entry as

agricultural or horticultural implements, in Chapter

98, under the HTSUS.

The issue to be decided is whether the articles subject to

this protest, which are imported pre-cut to size, have an

identity fixed with certainty. Because Stokbord is now imported

cut to specific sizes, ready for use as plastic gates/doors, we

find that they have a fixed identity as an agricultural

implement. Therefore, we find that the merchandise meets the

second part of the test for classifying an item under heading

9817.00.50, HTSUS.

The third part of the test is that importers meet the actual

use requirements of section 10.131 through 10.139, Customs

Regulations \[19 CFR 10.131 through 10.139\]. If these

requirements are satisfied, the third part of the test will be

met and the subject merchandise will qualify for duty-free

treatment as agricultural implements under heading 9817.00.50,

HTSUS.

HOLDING:

Under the authority of GRI 1, Stokbord is classifiable under

subheading 3920.10.00, HTSUS, which provides for: \"\[o\]ther

plates, sheets, film, foil and strip, of plastics, noncellular

and not reinforced, laminated, supported or similarly combined

with other materials: \[o\]f polymers of ethylene. . .\". The

column 1, general rate of duty is 4.2 percent ad valorem.

Additionally, Stokbord is eligible for duty-free treatment under

heading 9817.00.50, HTSUS, provided the actual use requirements

of section 10.131-10.139, Customs Regulations \[19 CFR 10.131-

10.139\], are satisfied.

The protest is GRANTED. In accordance with Section

3A(11)(b) of Customs Directive 099 3550-065, dated August 4,

1993, Subject: Revised Protest Directive, this decision, together

with the Customs Form 19, 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, Lexis, Freedom of

Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division