HQ 952796

January 29, 1993

CLA-2 CO:R:C:M 952796 RFA

CATEGORY: Classification

TARIFF NO.: 3920.10.00

District Director of Customs

610 South Canal Street

Chicago, IL 60607

RE: Protest No. 3901-92-101055; GRI 2(a); Stokboard;

essential character; 9817.00.50; agricultural or

horticultural purposes; HQ 083930; HQ 086883; HQ

087076; HQ 089936; HQ 951325

Dear District Director:

The following is our decision regarding the Protest and

Request for Further Review No. 3901-92-101055, dated July 23,

1992\. The protest was filed against your liquidation of the

entry of certain merchandise which was classified in subheading

3920.10.00, Harmonized Tariff Schedule of the United States

(HTSUS).

FACTS:

The merchandise, \"Stokboard\", 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. Stokboard is

imported in sheets measuring 4 feet by 8 feet, in 1/4 and 1/2

inch thicknesses. Subsequent to importation, the Stokboard

sheets are cut into one of 4 basic sizes in order to be put to

their intended use. These sizes are: 24\" x 32\"; 24\" x 48\"; 12\" x

32\"; and 12\" x 48\". Counsel for the importer states that 95% of

the cutting of the sheets is done by the importer or by

distributors. Only 5% of the cutting is done in the field by hog

farmers.

After the Stokboard is cut down to its various sizes, it is

sold to distributors for use by hog farmers. According to the

literature which was provided, the Stokboard 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; and other

uses for raising livestock.

ISSUE:

Does the Stokboard qualify for duty-free entry as

agricultural or horticultural implements, in Chapter 98, under

the 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.

Subheading 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, which provides that classification is

determined according to the terms of the headings and any

relative section or chapter notes. 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 Stokboard

is excluded from Heading 9817, HTSUS. To do this we must first

determine under which subheading it is classified. According to

U.S. Customs Laboratory Report No. 3-92-20046-001, dated November

15, 1991, the merchandise is a black plate composed of a hard,

noncellular plastics material of the polyethylene type. There

were no reinforcing material or laminated layers found. Based

upon the laboratory report, we find that Stokboard is

classifiable under subheading 3920.10.00, HTSUS.

Subheading 3920.10.00, HTSUS, 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. . .\". This subheading is

not excluded from classification in Heading 9817, HTSUS, by

operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note

2\.

The second part of the test calls for the Stokboard to be

included within the terms of subheading 9817.00.50, HTSUS, as

required by GRI 1. The Stokboard must be \"machinery\",

\"equipment\" or \"implements\" used for \"agricultural or

horticultural purposes\". For this part of the test, the initial

determination to be made is what agricultural or horticultural

pursuit is in question. It is the importer\'s position that

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

wall liner, and for easy sanitary maintenance. This is clearly

an agricultural pursuit.

The next determination to be made is whether the subject

merchandise is \"machinery\", \"equipment\" or \"implement\". The

Stokboard is imported in standard form in sheets measuring 4 feet

by 8 feet. These sheets are then cut to size before they are put

to their intended use. GRI 2(a) states in part:

\[a\]ny reference in a heading to an article shall be

taken to include a reference to that article incomplete

or unfinished, provided that, as presented, the

incomplete or unfinished article has the essential

character of the complete or finished article. . . .

We find that the Stokboard 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 Stokboard 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

Stokboard 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 subheading 9817.00.50, HTSUS.

We find that the Stokboard as imported does not qualify for duty-

free entry as agricultural or horticultural implements, in

Chapter 98, under the HTSUS.

Counsel for the importer cites HQ 951325 (May 12, 1992) for

support of his argument that Stokboard is an \"agricultural

implement\". In HQ 951325, we held that animal stalls, made of

galvanized steel tubing which are attached to the wall of a barn

or stable with the legs embedded in the cement floor, were

qualified for tariff treatment under subheading 9817.00.50,

HTSUS, if they met all the applicable requirements of section

10.131 through 10.139, Customs Regulations (19 CFR 10.131 through

10.139).

However, the merchandise here is not imported in its final

form, only requiring assembly as was the case in HQ 951325.

Instead, the Stokboard as imported is only a material from which

the agricultural implement will be made.

HOLDING:

The submitted merchandise 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.

The protest should be denied in full. A copy of this

decision should be attached to Customs Form 19 and provided to

the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division