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.

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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

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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

part.

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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:

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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.

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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