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HQ 959665




November 7, 1996

CLA-2 RR:TC:TE 959665 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Mr. Jack Flynn
Account Manager
Rudolph Miles & Sons, Inc.
P.O. Box 11057
El Paso, TX 79983

RE: Child Safety Balcony Guard

Dear Mr. Flynn:

This is in reply to your letter of July 10, 1996, requesting a tariff classification ruling on behalf of your client, BRK Brands, Inc., regarding a child safety balcony guard produced in China. You submitted a sample of the balcony guard for us to examine.

FACTS:

The merchandise in question is a child safety balcony guard which consists of a net composed of an open work knitted fabric of 100 percent polyethylene. The net has a 100 percent filament nylon woven tape, approximately two inches in width, sewn along the edges of the fabric. At twenty inch intervals, stainless steel grommets are inserted through the nylon woven tape along the edge of the net. The balcony guard is approximately forty inches wide and ten feet long.

The polyethylene netting is fastened to a balcony railing and/or posts by threading and tightening twelve plastic cable ties through the grommets. The balcony guard is designed to keep small children from falling through the upper story of a balcony.

ISSUE:

Is the child safety balcony guard classifiable as a net of textile material under heading 5608, or as a textile "furnishing" or "other made up articles" under chapter 63, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in their appropriate order. You claim that the net/balcony guard is classifiable under heading 5608, which provides for "[k]notted netting of twine, cordage or rope; made up fishing nets and other made up nets, of textile materials."

The Harmonized Commodity Description and Coding System Explanatory Notes (EN), while not legally binding, are recognized as the official interpretation of the Harmonized System at the international level. The EN to 5608 state that the products in that heading differ from the net of heading 5804 in that they are made of twine, cordage or rope of heading 5607. Heading 5804 provides for tulles and other net fabrics, not including woven, knitted or crocheted fabrics. Moreover, Customs ruled that for an article to be classified in heading 5608 as other made up nets, it must be made of a net fabric classified in heading 5804. Headquarters Ruling Letter (HQ) 083020, dated March 27, 1990. In light of the fact that the terms of heading 5804 exclude knitted fabrics, the knitted net at issue cannot be classified in heading 5608.

The next question is whether the net is a textile "furnishing" or "other made up articles" under chapter 63, HTSUSA. Heading 6304 provides for "Other furnishing articles, excluding those of heading 9404." The EN to heading 6304 state:

This heading covers furnishing articles of textile materials, other than those of the preceding headings or of heading 94.04, for use in the home, public buildings, theaters, churches, etc., and similar articles used in ships, railway carriages, aircraft, trailer caravans, motor-cars, etc.

The items listed in the EN to heading 6304 are generally used in the home or public building, theatre, church, etc., and serve a protective and/or decorative purpose:

These articles include wall hangings and textile furnishings for ceremonies (e.g. weddings or funerals); mosquito nets; bedspreads (but not including bed coverings of heading 94.04); cushion covers, loose covers for furniture, antimacassars; table covers (other than those having the characteristics of floor coverings - see Note 1 to Chapter 57); mantlepiece runners; curtain loops; valances (other than those of heading 6301).

In HQ 088553, dated November 6, 1991, we held that a crib tent constructed of knitted net material, which was designed to prevent a child from climbing out of a crib and injuring himself, was classifiable under subheading 6304.91.0040. Although the net in the instant case is also designed to prevent a child from injuring himself, it is distinguishable from the crib net in that it is designed for use outside of the house, i.e. on the balcony. We do not, therefore, consider it a furnishing article for use in the home under heading 6304. Accordingly, since there is not a more specific heading under which to classify the child safety balcony guard, it is classifiable in the residual provision for "other made up [textile] articles" in heading 6307.

HOLDING:

The child safety balcony guard is classified in subheading 6307.90.9989 which provides for "Other made up articles, including dress patterns: Other: Other: Other." It is dutiable at the column one general rate of duty at 7 percent ad valorem.

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 importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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