HQ 956887 - Classification of Gazebo made with plastic coated woven textile fabric and steel frame - United States International Trade Commision Rulings

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HQ 956887

December 9, 1994

CLA-2 CO:R:C:T 956887 GG

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9590

Norman Katz, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, New York 10016

RE: Classification of Gazebo made with plastic coated woven textile fabric and steel frame

Dear Mr. Katz:

This is in response to your August 16, 1994, request for a ruling on the tariff classification of a gazebo that your client, Nelson Weather-Rite, Inc., plans to import.

FACTS:

The merchandise at issue is a gazebo, identified as Style No. 4671. The gazebo is supported by zinc-coated steel frame poles and is covered on the top and down the four legs by woven polyethylene strip fabric coated on both sides with a white pigmented film of polyethylene plastic. The polyethylene strips measure less than 5 mm in width. The plastic coating is easily separated by hand from the underlying fabric.

ISSUE:

What is the proper classification of the Style No. 4671 gazebo?

LAW AND ANALYSIS:

Articles are classified under the Harmonized Tariff Schedule of the United States (HTSUSA)in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 6306, HTSUSA, specifically provides for tents. The term "tents" includes gazebos. See Headquarters Ruling Letter (HRL) 954621, dated December 20, 1993; HRL 086520, dated March 6,

1990; and New York Ruling Letter (NYRL) 802029, dated September 29, 1994. Explanatory Note 63.06 of the Harmonized Commodity Description and Coding System advises that tents are classified in this heading, whether or not they are presented complete with their tent poles, tent pegs, guy ropes or other accessories. However, the gazebos currently under consideration cannot be classified under this heading, because Chapter 63 falls under Section XI of the HTSUSA, and Note 1(h) to Section XI excludes woven fabrics coated with plastics, or articles thereof, of Chapter 39. As we shall see, the tents are articles of woven fabrics covered with plastics, classifiable under Chapter 39.

Precluded from classification as a tent under heading 6306, HTSUSA, the gazebo, which is made up from plastic coated woven fabric and steel frame poles, must be treated as a composite good. GRI 2(b) directs that merchandise consisting of more than one material or substance is to be classified according to the principles of GRI 3.

GRI 3(a) provides that each heading will be considered equally specific when two or more headings each refer to part only of the materials or substances contained in composite goods. The steel frame poles are structures of iron or steel of heading 7308, HTSUSA. Two separate provisions must be examined in determining under which heading the textile component of the gazebo falls.

Heading 5903, HTSUSA, covers textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902 [tire cord fabric]. Chapter Note 2(a)(3) excludes from heading 5903 products with textile fabric coated on both sides with plastics, provided that the coating can be seen with the naked eye. The note places such products in Chapter 39.

Chapter 39 of the HTSUSA covers plastics and articles thereof. The General Explanatory Note to this chapter provides, in pertinent part, the following:

Plastics and textile combinations

... [T]he classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI ... The following products are also covered by this Chapter:

(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with
no account being taken of any resulting change of color;

In determining whether a plastic coating is visible to the naked eye, no account should be taken of any resulting change in color, reflectivity, fabric stiffness, or other property which causes the viewer to see the effect rather than the presence of plastic material. See HRL 084165, dated June 26, 1989; HRL 089548, dated October 17, 1991; and HRL 953937, dated December 17, 1993. However, in the instant analysis it is apparent upon examination of the subject fabric that it is visibly coated on both sides with plastic. The translucent plastic laminate is easily separated, by hand, from the underlying woven polyethylene strip, and visibility is based on this factor.

The applicable heading within Chapter 39 for the textile component of the tent is heading 3926, HTSUSA, which provides for other articles of plastic and articles of other materials of headings 3901 to 3914. Resort must be made to GRI 3(b) because headings 3926 and 7308, HTSUSA, refer to part only of the materials contained in the gazebo, therefore, they are equally specific.

GRI 3(b) provides that classification is to be determined by the material or component that imparts the essential character to the good. Previously, we have concluded that the protection from the elements provided by a tent's covering is a more significant factor than the support to the structure given by the metal poles in determining essential character. See HRL 086548, dated April 12, 1990. Accordingly, the plastic coated fabric confers the essential character to the Style No. 4671 gazebo.

In accordance with GRI 3(b), the gazebo is classifiable as an article of plastic under heading 3926, HTSUSA.

HOLDING:

The gazebo is classifiable as an other article of plastic, other, other, other, under subheading 3926.90.9590, HTSUSA, dutiable at the rate of 5.3% ad valorem. The gazebo is not subject to a textile category.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant
Director, Commercial

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