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HQ 956129

May 25, 1994

CLA-2 CO:R:C:T 956129 HP


TARIFF NO.: 5608.11.0010

Mr. Robert Richter
District Director
U.S. Customs Service
1 East Bay Street
Room 104
Savannah, GA 31401

RE: Application for Further Review of Protest 1703-94-100017; nets

Dear Mr. Richter:

This is in reply to your Memorandum of March 10, 1994. That memo forwarded a timely filed Application for Further Review of Protest 1703-94-100017. That Protest concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of hand-cast, string-drawn fishing nets, produced in Indonesia.


The merchandise at issue consists of hand-cast, string- drawn fishing net, six feet in diameter, with a 1/2" mesh size, and weighted with lead. Protestant claims classification within subheading 9507.90.6000, HTSUSA, as fish landing nets, butterfly nets and similar nets. You disagree, placing the nets under subheading 5608.11.0010, HTSUSA, as made up fishing nets of textile materials.


Whether the nets are appropriately classified as similar to fish landing nets or to made up fishing nets under the HTSUSA?


Protestant argues that classification of the cast nets within heading 9507 is required for two reasons. First, the nets were classified according to the position set forth in HRL 087173 of September 18, 1990. Secondly, classification of the nets within heading 5608 is contrary to an established and uniform practice of classifying the nets within heading 9507, HTSUSA.

HRL 087173

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 Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the tariff at the international level. They represent the considered views of classification experts of the Harmonized System Committee. Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158 (Ct. Int'l Trade 1992). While not treated as dispositive, the EN are to be given considerable weight in Customs' interpretation of the HTSUSA. Boast, Inc. v. United States, 15 Int'l Trade Rep. (BNA) 1188, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993). 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 cast net to be similar to the fish landing nets, classification in heading 9507 would be mandated.

In HRL 087173, issued to a third party, 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 HRL 951480 of March 28, 1994, 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 [sic.] 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.

Irrespective of our Notice of Proposed Revocation of HRL 087173 in the Customs Bulletin, that ruling remained effective until actually revoked. See Section 177.9(a), Customs Regulations (19 C.F.R. 177.9(a)). Had Protestant been the ruling letter's recipient, its reliance upon the principles of HRL 087173 would have been well grounded in law. Section 177.9(b), Customs Regulations. Since Protestant was not that recipient, and since you have noted various New York Ruling Letters (still in effect and issued to yet other third parties ) classifying identical merchandise under heading 5608, HTSUSA, you were correct in not considering HRL 087173 binding upon the instant entries. We agree with your classification.

Established and Uniform Practice

In HRL 951480, supra, we addressed this issue as follows:

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.

? NYRL 832770 of November 1, 1988, and
NYRL 833536 of December 9, 1988, classified cast nets under heading 5608,
HTSUSA, as nets of textile materials. ?On October 1, 1992, the National Import Specialist (NIS) for 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.

? On August 20, 1993, the NIS performed a computer search of 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. Protestant's 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.

You are instructed to deny the protest. 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 the mailing of the decision. Sixty days from the date of the decision the Office of Regulations & Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis~, Freedom of Information Act, and other public access channels.


John Durant, Director
Commercial Rulings Division

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