HQ 954978

October 21, 1994

CLA-2 CO:R:C:T 954978 CMR

CATEGORY: Classification

TARIFF NO.: 6002.20.1000

District Director

U.S. Customs Service

6269 Ace Industrial Drive

Milwaukee, Wisconsin 53237-0260

RE: Protest with Application for Further Review #3701-93-100113;

Classification of tubular knitted polyethylene netting;

made up articles; Note 7, Section XI; headings 3917, HTSUSA,

6307, HTSUSA, or 6002, HTSUSA

Dear Sir:

This ruling is in response to a timely protest filed by the

firm of Sullivan & Lynch on behalf of their client, XXXXX

XXXXXXXXX Inc., against your liquidation and classification of

three entries of certain tubular knitted polyethylene netting.

You classified the netting as a warp knit openwork fabric of

subheading 6002.20.1000, HTSUSA. Protestant claims the netting

is classified in subheading 3917.32.00, HTSUSA, which provides

for tubes, pipes and hoses, of plastics, not reinforced or

otherwise combined with other materials, without fittings, of

polyethylene, or in the alternative, in subheading 6307.90.99,

HTSUSA, as an other made up article of textile fabric.

FACTS:

Protestant describes the merchandise at issue as

polyethylene packaging mesh. Customs has described it as a

tubular, open-work, warp knit fabric of polyethylene.

The protestant asserts classification of the merchandise

under heading 3917.32.00, HTSUSA, based upon Note 8, Chapter 39,

HTSUSA, which states that the expresssion \"tubes, pipes and

hoses\" includes, among other things, lay flat tubing. Protestant

cites to NYRL 836407 of February 22, 1989, for support of its

claim. That ruling classified net-like lay flat tubing, imported

in material lengths and used to make bait holders for lobster

fishing or packaging for Christmas trees, in subheading

3917.32.00, HTSUSA. The lay flat tubing was described as

\"composed of extruded polyethylene and\...not made from pre-

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existing filaments.\" Protestant believes the merchandise at

issue herein is similar to the merchandise ruled upon in NYRL

836407 based upon the description and the fact that protestant\'s

merchandise is also used as a lobster bait holder and can be used

for the bagging of Christmas trees. Therefore, protestant

believes its merchandise should be classified in subheading

3917.32.00, HTSUSA, in accord with NYRL 836407.

In the alternative, protestant seeks classification of the

merchandise at issue as an other made up article of textile of

heading 6307, HTSUSA. The Harmonized Commodity Description and

Coding System Explanatory Notes (hereinafter EN) are cited for

support of this proposition. Protestant cites the EN to heading

6307, HTSUSA, wherein it is stated:

Besides the finished articles listed above, this heading

covers articles in the length, made up within the meaning of

Note 7 to Section XI, provided they are not included in

other headings of Section XI.

Protestant believes its product meets the terms of Note 7,

Section XI, as stated in provision (f) of the note. Note 7(f)

states:

For the purposes of this Section, the expression \"made up\"

means:

\(f\) Knitted or crocheted to shape, presented in the

form of a number of items in the length.

Protestant cites HRLs 084348 of August 3, 1989, and 085570 of

January 12, 1990, for further support.

You based your classification of the merchandise as knit

fabric of heading 6002, HTSUSA, upon an analysis of the product

by one of Customs laboratories and a review of the material by

the National Import Specialist assigned to this merchandise.

The original sample of the merchandise at issue was

inadvertently destroyed. Another sample was submitted by

protestant\'s counsel and received by Customs on December 14,

1993\. This sample was examined by the National Import Specialist

who advised this office it is not the same construction as the

original sample. This office obtained the Customs laboratory

report with a swatch of the original sample attached. Upon

examination, we must agree the samples are different and

therefore we will ignore the sample submitted on December 14th

and base our decision upon the sample swatch and laboratory

report.

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ISSUE:

Is the polyethylene netting at issue classified as plastic

lay flat tubing of polyethylene in subheading 3917.32.00, HTSUSA,

or as an other made up article of textile of subheading

6307.90.99, HTSUSA, or as a knit fabric of subheading

6002.20.1000, 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

headings and any relative section or chapter notes and, provided

such headings or notes do not otherwise require, according to

\[the remaining GRIs taken in order\].\"

The Customs laboratory report with a piece of the subject

merchandise attached described the merchandise as follows:

The sample consists of a tubular, open-work, warp knit

fabric having a width of 16 centimeters when laid flat.

This fabric is composed of 100 percent by weight of

polyethylene strips of an apparent width not exceeding one

millimeter.

Note 1(g), Section XI, provides:

This section does not cover:

Monofilament of which any cross-sectional dimension

exceeds 1 mm or strip or the like (for example, artificial

straw) of an apparent width exceeding 5 mm, of plastics

(Chapter 39), or plaits or fabrics or other basketware or

wickerwork of such monofilament or strip (Chapter 46).

Note 2(l), Chapter 39, provides: \"This chapter does not cover:

\(l\) Goods of section XI (textiles and textile articles).

Based upon the legal notes cited above and the laboratory

report provided to us, it is clear that the strips from which the

merchandise at issue is made are considered textile for tariff

purposes. As such, the merchandise is excluded by Note 2(l) from

classification in Chapter 39.

As to protestant\'s reliance upon NYRL 836407, the

merchandise at issue therein was made in a different manner of a

different material. That merchandise was formed directly by

extrusion through a forming die. It was not a textile, but a

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plastic good based upon the manner of production. Thus, NYRL

836407 is of no support for protestant because it is on a

completely different good.

Protestant\'s alternate claim, heading 6307, HTSUSA, requires

that the merchandise meet the terms of Note 7, Section XI, for

qualifying as \"made up\". Protestant relies upon provision (f) of

Note 7, which states that, in brief, the expression \"made up\"

means \"knitted or crocheted to shape, presented in the form of a

number of items in the length.\" Protestant\'s counsel asserts the

good meets this definition as it is knitted to shape and in

continuous lengths.

We disagree with this assertion. The merchandise at issue

is not recognizable as a \"number of items in the length\". It is

one continuous tubular length of fabric and thus, does not meet

the definition of \"made up\" in Note 7(f).

Protestant cites HRLs 084348 and 085570 as support that his

merchandise should be classified as a made up article of heading

6307, HTSUSA. The goods at issue in those rulings did meet the

requirements of Note 7 for consideration as \"made up\". In HRL

084348, the merchandise was described as being made of two panels

which were joined by folding over and heat-sealing the edges.

Clearly, the merchandise therein and the merchandise at issue

here are distinguishable. HRLs 084348 and 085570 do not lend any

support to protestant\'s argument.

Finally, protestant\'s counsel cited Fabrene Inc. v. United

States, Slip Op. 93-164, decided August 16, 1993, and Sanwa

Foods, Inc. v. United States, Slip Op. 93-169, decided August 23,

1993 (judgement for the plaintiff), as supportive of the sought

classification. In the matter of Sanwa Foods, a rehearing was

granted on February 22, 1994, in Sanwa Foods, Inc. v. United

States, Slip Op. 94-30. The decision after the rehearing, Sanwa

Foods, Inc. v. United States, Slip Op. 94-76, decided May 10,

1994, was for the defendant.

Customs has reviewed these decisions and finds they do not

support the protestant\'s claim. Fabrene merely refers to the

descriptions contained in Customs rulings HRLs 084348 and 085570,

and the case was dismissed for lack of jurisdiction. Sanwa dealt

with merchandise that was of plastic and classified in Chapter

39\. Chapter 39 does not contain an analogous \"made up\"

requirement as that of Chapter 63. In addition, in Sanwa, Slip

Op. 94-76, the court agreed that Customs classification of the

merchandise at issue therein in subheading 3920.10.00, HTSUSA,

which provides for other plates, sheets, film, foil, and strip of

plastics, noncellular and not reinforced, laminated, supported or

similarly combined with other materials: of polymers of ethylene,

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was correct. The plaintiff in the case had sought classification

of the merchandise as articles for the conveyance or packing of

goods, of plastic, of heading 3923, HTSUSA.

Having reviewed the protestant\'s arguments, we believe the

merchandise was correctly classified by Customs as a tubular,

open-work, warp knit fabric of polyethylene classified in

subheading 6002.20.1000, HTSUSA, which provides for other knitted

or crocheted fabrics: other, of a width not exceeding 30 cm:

open-work fabrics, warp knit. Goods classified therein fall

within textile category 229 and are subject to a rate of duty of

16 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