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HQ 951480

March 28, 1994

CLA-2 CO:R:C:T 951480 HP


TARIFF NO.: 5608.11.0010

Mr. Salvatore Caramagno
Ross & Hardies
888 16TH Street, N.W.
Washington, D.C. 20006-4103

RE: Notification of Revocation of HRL 087173 by HRL 950561.

Dear Mr. Caramagno:

This is further to your letter of May 8, 1990. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of fishing nets, produced in Taiwan. Please reference your client Blue Ribbon Products.


The merchandise at issue consists of a net, approximately six feet in diameter, with a 1/2" mesh size, and weighted with lead. It is made of an open mesh construction with knotted monofilament yarn of man-made fiber. The subject net is commonly known as a cast net, used to catch bait such as minnows.

In HRL 087173, we classified this net under subheading 9507.90.6000, HTSUSA, as a net similar to fish landing nets and sports nets. This subheading was preferred over heading 5608, HTSUSA, which provides for, inter alia, made up fishing nets and other made up nets. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed revocation of HRL 087173 was published on February 16, 1994, in the Customs Bulletin, Volume 28, Number 7.


Whether the classification under the HTSUSA of the cast nets as similar to sports nets was correct?


Heading 5608, HTSUSA, provides for, inter alia, made up fishing nets and other made up nets, of textile materials. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading provides:

(2) Made up fishing nets and other made up nets, of textile materials.

Made up nets are nets, whether or not ready for use, made directly to shape or assembled from pieces of netting. The presence of handles, rings, weights, floats, cords or other accessories does not affect the classification of the goods of this group.

Made up nets of this heading are restricted to those nets not covered more specifically by other headings of the Nomenclature. The heading includes fishing nets....

The heading does not cover:

(c) Sports nets (e.g., goal nets and tennis nets), fish landing nets and other nets of Chapter 95.

Heading 9507, HTSUSA, provides for, inter alia, fish landing nets, butterfly nets and similar nets. The EN to this heading describes these nets as "usually consist[ing] of pocket-like nets of textile yarn or cord, mounted on a wire support and fixed to a handle." Therefore, if we consider a net to be similar to the fish landing nets, classification in heading 9507 would be mandated.

In HRL 087173, we held that the cast nets were excluded from heading 5608, HTSUSA, and were properly classified in heading 9507, HTSUSA. The ruling went on to state:

You [the importer] have suggested that the cast net at issue is excluded from heading 5608 because it is used by sports fishermen to catch bait and thus, should be considered a sports net. We agree that cast nets are principally used in the United States by sports fishermen to catch bait. Furthermore, you contend that the fishing nets encompassed by heading 5608 are limited to commercial fishing nets and that the cast net at issue is excluded since its principle use is not commercial, but recreational.

In our response to a Request for Internal Advice by the Area Director, Newark, on the tariff classification of crab nets (HRL 950561 of this date), we stated:

HRL 087173 based the cast net's exclusion from heading 5608, HTSUSA, on two basic points. First, in stating that the nets are "principally used by sports fishermen," HRL 087173 reasoned that the nets should "fall within the [Explanatory Note] exclusion for sports nets." Heading 9506, HTSUSA, provides for articles and equipment for sports. These sports include skiing, golfing, ping-pong, tennis, badminton, baseball, polo, ice skating, football, etc. Badminton nets are the only nets provided for eo nomine. It is clear that nets for these sports in no way resemble, and are therefore not similar to, cast nets. Additionally, the National Import Specialists for both sports equipment and nets agree that the Explanatory Note exclusion for "sports nets" is separate and distinct from the exclusion for "fish landing nets and similar nets." HRL 087173's merging of the two into an exclusion for
"sports nets similar to fish landing nets" was therefore incorrect.

The cast nets do not qualify for the exclusion as fish landing nets. Heading 9507 provides for fish landing nets. The
Explanatory Note to heading 9507 describes them as "usually consist[ing] of pocket-like nets ... mounted on a wire support and fixed to a handle." The Random House Dictionary of the English Language (unabridged) defines a landing net as "a small, bag-shaped net with a handle at the mouth, for scooping a hooked fish out of the water and bringing it to shore or into a boat." The cast net clearly does not resemble the landing net in design, construction, or use. It is cast out upon the waters and drawn back to the fisherman, hopefully full of minnows. Except for the size of the fish and the size of the mesh, this is essentially how a net is used by a commercial fisherman.

In Pier I Imports, Inc. v. United
States, 83 Cust. Ct. 43, C.D. 4819 (Aug. 24, 1979) (TSUS), the U.S. Customs Court established the common and commercial meaning of fishnets as nets for catching fish, as opposed to material resembling fishing nets. See Webster's Third New International
Dictionary of the English Language,
Unabridged (1966) (containing the definition the Court adopted). Therefore, "only commercial fishing nets and fish netting were encompassed in the ... provisions [for fishing nets]," and "netting which is not suitable for commercial fishing" (i.e., decorative fish netting for hanging on walls) are classified in the provisions for other nets.

In light of this language, HRL 087173's second point was that only nets principally used for commercial fishing were classifiable as "made up fishing nets." This conclusion demonstrates a misreading of the Pier I
Imports decision. In stating that "only commercial fishing nets and fish netting [(as opposed to netting for decorative display, which was the merchandise at issue)] were encompassed in the ... provisions [for fishing nets]," the Court was distinguishing between the nets' capability to catch fish, not creating an tariff-based distinction between commercial and recreational fishing. Indeed, the Court repeatedly stated that the merchandise "was not sufficiently durable for use in catching fish." See HRL 060802,
C.S.D. 80-224, 14 Cust. B. & Dec. 1128 (Feb. 8, 1980) (following Pier I Imports in holding that an aquarium net, irrespective of its user, is a net "not suitable for commercial fishing"). HRL 087173's extension of Pier I Imports' "suitable for commercial fishing" to "principally used" by commercial fishermen was incorrect; accordingly, HRL 087173 is hereby revoked.

A copy of this ruling may be requested by following procedures outlined in the Freedom of Information Act, 5 U.S.C. 552.

Uniform and Established Practice

You have argued that "an established and uniform practice has developed with respect to these fish nets pursuant to the issuance of HRL087173 [sic.]. Section 177.10(c)(1) of the Customs Regulations, states that:

Before the publication of a ruling which has the effect of changing a practice and which results in the assessment of a higher rate of duty, notice that the practice (or prior ruling on which the practice is based) is under review will be published in the Federal Register and interested parties will be given an opportunity to make written submissions with respect to the correctness of the contemplated change.

See also Section 315(d), Tariff Act of 1930, as amended. Established practice must be shown by positive evidence. Sturm, A Manual of Customs Law (1974), at 201. "It is not established by the rulings of one or two collectors [ports] as to a few shipments...." Id., citing, inter alia, United States v. H. Reeve Angel & Co., Inc., 33 CCPA 114, C.A.D. 324 (1946), cert. den. 328 U.S. 835 (1946).

In your letter of July 23, 1993, you submitted lists of three companies' entries of cast nets. You stated that these 80 liquidations occurred from approximately February of 1991 through the present. You argue that these liquidations are evidence of an established and uniform practice by the Customs Service of classifying cast nets within heading 9507, HTSUSA. For the following reasons, we disagree.
were consistently classified either as articles of lead (via chief value) or as fishing nets of textiles. See, e.g., HRL 045042 of April 2, 1976.

9, 1988, classified cast nets under heading 5608, HTSUSA, as nets of textile materials.
this type of merchandise surveyed Customs field personnel with respect to classification of this merchandise in fiscal years 1991 and 1992. Six ports have been entering cast nets: 2 under heading 9507, 3 under heading 5608, and 1 under both headings.
entries from January, 1992 to July, 1993. Nine different importers entered cast nets under heading 5608, HTSUSA, one of which is a company you submitted evidence for in your July 23, 1993, letter, supra.

Judging from the above, it is apparent that the cast nets have not been classified in accordance with an established and uniform practice of classification, but rather have been subject to disparate Customs treatment under the HTSUSA. Your claim that the aforementioned list of liquidations constitutes evidence of a practice therefore is appropriately denied.


As a result of the foregoing, the merchandise at issue is classified under subheading 5608.11.0010, HTSUSA, as knotted netting of twine, cordage or rope; made up fishing nets and other made up nets, of textile materials, of man-made textile materials, made up fishing nets, hand-cast, string-drawn. The applicable rate of duty is 17 percent ad valorem.

This letter should be considered a notice of revocation of HRL 087173 of September 18, 1990, by HRL 950561. In accordance with section 625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 C.F.R. 177.10(c)(1).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


John Durant, Director
Commercial Rulings Division

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