CLA-2 CO:R:C:M 955597 RFA

District Director of Customs
610 South Canal Street
Chicago, IL 60607

RE: Protest 3901-93-101489; "Stokbord"; sheets of plastic; 9817.00.50; agricultural or horticultural purposes; HQs 083930, 086883, 087076, 089936, 952796

Dear District Director:

The following is our decision regarding the request for further review of Protest 3901-93-101489, which concerns the classification of Stokbord under the Harmonized Tariff Schedule of the United States (HTSUS). The subject entry was liquidated on June 25, 1993. The protest was timely filed on August 5, 1993.

FACTS:

The merchandise, "Stokbord", 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. Stokbord is imported in sheets measuring 42 inches by 40 inches and 43 inches by 32 inches, in 1/2 inch thicknesses.

According to the literature which was provided, Stokbord 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; as gates/doors for finishing pens and farrowing crates; and other uses for raising livestock.

Classification of Stokbord sheets was previously addressed in HQ 952796, dated January 29, 1993. That ruling concerned Stokbord imported in sheets measuring 4 feet by 8 feet, which, after importation, would be cut into specific sizes to suit their intended use. Customs determined that, as imported, Stokbord sheets measuring 4 feet by 8 feet, did not have the essential character of a complete or finished article which is used in agriculture and therefore was not eligible for duty-free treatment under heading 9817.00.50, HTSUS.

The subject merchandise was entered under subheading 3920.10.00, HTSUS, as plastic sheeting, eligible for duty-free treatment under heading 9817.00.50, HTSUS, as agricultural or horticultural equipment or implements. The entry was liquidated as ineligible for duty-free treatment under subheading 3920.10.00, HTSUS.

The classification categories under consideration are as follows:

3920.10.00: Other 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. . .

Goods classifiable under this provision have a general, column one rate of duty of 4.2 percent ad valorem.

9817.00.50 Machinery, equipment and implements to be used for agricultural or horticultural purposes . . . .

Goods classifiable under this provision have a general, column one free rate of duty.

ISSUE:

Does Stokbord, cut to specific sizes, qualify for duty-free treatment as agricultural or horticultural implements under heading 9817.00.50, 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.

Heading 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. 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 Stokbord is excluded from heading 9817.00.50, HTSUS. To do this we must determine under which subheading it is classified. In HQ 952796, Customs determined that Stokbord was classifiable as sheets of plastic under subheading 3920.10.00, HTSUS, according to information in U.S. Customs Laboratory Report No. 3-92-20046-001, dated November 15, 1991. This subheading is not excluded from classification in heading 9817.00.50, HTSUS, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2.

The second part of the test calls for Stokbord to be included within the terms of heading 9817.00.50, HTSUS, as required by GRI 1. Stokbord must be "machinery", "equipment" or "implements" used for "agricultural or horticultural purposes". Webster's II New Riverside University Dictionary (1988), defines machinery, equipment, implement, agriculture and horticulture as follows:

Machinery: 1. Machines or machine parts in general. 2. The working parts of a machine. 3. A system of related elements that operates in a definable way.

Equipment: 1. The act of equipping or state of being equipped. 2. Something with which one is equipped.

Implement: 1. A tool, utensil, or instrument for doing a task. 2. An article used to outfit or equip.

Agriculture: The science, art, and business of cultivating the soil, producing crops, and raising livestock.

Horticulture: The science, art, and business of cultivating fruits, vegetables, flowers, and plants.

For this part of the test, the initial determination to be made is what agricultural or horticultural pursuit is in question. In HQ 952796, Customs determined that the Stokbord which assists in raising swine by its use as a floor mat, wall liner, and for easy sanitary maintenance, is clearly an agricultural pursuit.

The next determination to be made is whether the subject merchandise is "machinery", "equipment" or "implement". In HQ 952796, Stokbord was imported in standard form, in sheets measuring 4 feet by 8 feet, which would then be cut to size before they are put to their intended use. Citing GRI 2(a), Customs concluded as follows:

We find that the Stokbord 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 Stokbord 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 Stokbord 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 heading 9817.00.50, HTSUS. We find that the Stokbord as imported does not qualify for duty-free entry as agricultural or horticultural implements, in Chapter 98, under the HTSUS.

The issue to be decided is whether the articles subject to this protest, which are imported pre-cut to size, have an identity fixed with certainty. Because Stokbord is now imported cut to specific sizes, ready for use as plastic gates/doors, we find that they have a fixed identity as an agricultural implement. Therefore, we find that the merchandise meets the second part of the test for classifying an item under heading 9817.00.50, HTSUS.

The third part of the test is that importers meet the actual use requirements of section 10.131 through 10.139, Customs Regulations [19 CFR 10.131 through 10.139]. If these requirements are satisfied, the third part of the test will be met and the subject merchandise will qualify for duty-free treatment as agricultural implements under heading 9817.00.50, HTSUS.

HOLDING:

Under the authority of GRI 1, Stokbord 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. Additionally, Stokbord is eligible for duty-free treatment under heading 9817.00.50, HTSUS, provided the actual use requirements of section 10.131-10.139, Customs Regulations [19 CFR 10.131- 10.139], are satisfied.

The protest is GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, 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, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division