HQ 955597: Protest 3901-93-101489; "Stokbord"; sheets of plastic; 9817.00.50; agricultural or horticultural purposes; HQs 083930, 086883, 087076, 089936, 952796

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 955597

                           May 31, 1994

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

CATEGORY:  Classification

TARIFF NO.: 3920.10.00, 9817.00.50


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