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NY R01391




March 8, 2005

CLA-2-66:RR:NC:N3:351 R01391

CATEGORY: CLASSIFICATION

TARIFF NO.: TARIFF NO.: 6601.10.0000; 3926.90.9880; 7019.90.1000

Ms. Lisa M. Thomas
Trade and Regulatory Services
PBB Global Logistics
670 Young St.
Tonawanda, NY 14150

RE: The tariff classification and status under the United States-Australia Free Trade Agreement (UAFTA) of shade umbrellas and shade structures from Australia.

Dear Ms. Thomas:

In your letter dated Feb. 4, 2005, you requested a ruling on behalf of Taiyo Birdair Corp. (TBC), of Amherst, NY, on the status of shade umbrellas and shade structures from Australia under the UAFTA. The manufacturer is a related firm, Taiyo Membrane Corp. (TMC), of Brisbane.

We previously classified this merchandise in rulings J88122 (Sept. 16, 2003) and R01376 (Feb. 11, 2005). You submitted brochures for restaurant umbrellas and covers, models Porto (formerly Mediterranean), Centra (formerly Casablanca), Leva (formerly Alfresco), Boulevard, and Modular units Monaco, Pavilion, and Quasar. You also submitted a sample of the fabric from which the membranes of these are to be made. You state that the membrane is made from an initial layer of pre-stressed, high strength polyester woven yarn, a polymer coating, and a PVDF coating on top of the polymer coating. The sample swatch submitted with a previous request consisted of a woven textile substrate heavily and visibly coated with plastics on both sides. Material of this construction is considered to be plastic sheeting of chapter 39 for tariff purposes.

You describe the PVDF as a patented plastic coating that is grafted to the surface, forming a high performance composite membrane. The PVDF coating provides color fastness and provides resistance to UV deterioration, chalking, mold, pollution, and other conditions.

The frames and hardware are made of steel. You state that in some instances, the steel column and arm for the shade structures is not imported but is manufactured in the U.S. due to its size and bulk. This does not affect the classification of the structures in their condition as imported.

The models Porta, Leva, and Centra are described in the brochure as closeable umbrella shade structures. The others are described as non-collapsible.

In the previous rulings, we classified Porta, Leva and Centra in subheading 6601.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for umbrellas and sun umbrellas (including walking-stick umbrellas, garden umbrellas and similar umbrellas): garden or similar umbrellas. The general rate of duty will be 6.5 percent ad valorem.

In those rulings we also classified Boulevard, Monaco, Pavilion, and Quasar non-collapsible structures made of the plastic coated fabric in subheading 3926.90.9880, HTS, which provides for other articles of plastics other. The general rate of duty will be 5.3 percent ad valorem.

You now state that TMC will be importing into Australia the coated polyester woven fabric, or membrane. It will be manufactured in the United States or Germany, and occasionally in France and Japan.

General Note (GN) 28(b), HTSUS, sets forth the criteria for determining whether a good is originating under the UAFTA. General Note 28(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, a good imported into the customs territory of the United States is eligible for treatment as an originating good of a UAFTA country under the terms of this note only if –

(i) the good is a good wholly obtained or produced entirely in the territory of Australia or of the United States, or both;

(ii) the good was produced entirely in the territory of Australia or of the United States, or both, and—

(A) each of the non-originating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (n) of this note;

(B) the good otherwise satisfies any applicable regional value content requirement referred to in subdivision (n) of this note; or

(C) the good meets any other requirements specified in subdivision (n) of this note;
and such good satisfies all other applicable requirements of this note;

(iii) the good was produced entirely in the territory of Australia or of the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note; or

(iv) the good otherwise qualifies as an originating good under this note,
and is imported directly into the customs territory of the United States from the territory of Australia.

Not all of the materials to make the models Porta, Leva, and Centra are originating, because the fabric may be from Germany, France, or Japan. In a fax dated Feb. 17, 2005, and a follow-up telephone conversation with National Import Specialist Mitchel Bayer, you stated that all of the other materials used to construct the PTFE and PVDF umbrellas, including all cables, hardware, frames, etc., are wholly obtained or originating in Australia or the U.S. or both.

In such a case, we must refer to GN 28(n), which specifies the required changes in classification. GN 28(n), Chapter 66 rule (1.) states:

A change to heading 6601 from any other heading, except from a combination of both: (a) subheading 6603.20; and (b) headings 3920 through 3921 [emphasis added], 5007, 5111 through 5113, 5208 through 5212, 5309 through 5311, 5407 through 5408, 5512 through 5516, 5602 through 5603, 5801 through 5811, 5901 through 5911 or 6001 through 6002.

Heading 6603 provides for umbrella frames, including ribs and stretchers for frames. The PVDF fabric for the membranes is classified in heading 3921. Accordingly, the models Porta, Leva, and Centra, when the PVDF fabric is from Germany, France, or Japan, will not qualify for UAFTA preferential treatment. However, when the PVDF fabric originates in the U.S. or Australia, the models Porta, Leva, and Centra will qualify for UAFTA preferential treatment because they will meet the requirements of HTSUSA General Notes 28(b)(ii)(A).

By the same reasoning, not all of the materials to make the models Boulevard, Monaco, Pavilion, and Quasar are originating. In such a case, we must refer to GN 28(n), which specifies the required changes in classification. GN 28(n), Chapter 39 rule (5.) states:

A change to headings 3922 through 3926 from any other heading.

The PVDF fabric for the membranes is classified in heading 3921. Based on the facts provided, models Boulevard, Monaco, Pavilion, and Quasar, when made of the plastic coated textile fabric, qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUSA General Notes 28(b)(ii)(A) and 28(n), Chapter 39 rule (5).

In addition, you state in your most recent letter that TMC will be importing a fiberglass fabric coated with polytetrafluoroethylene (PTFE) from the U.S. and Japan, for manufacture into these same items. You state that this PTFE-coated fiberglass and its processing are identical to the merchandise in ruling L80635 (Nov. 24, 2004), which was classified in subheading 7019.90.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for glass fibersand articles thereofother: woven.

Your letter implies, and a telephone conversation confirmed, that TMC might be using the PTFE fiberglass fabric to make both kinds of structures. If so, the models Porta, Leva, and Centra will still be classified in subheading 6601.10.0000, HTS, as umbrellas. Also, when the PTFE fiberglass fabric (heading 7019) is used, the models Porta, Leva, and Centra will qualify for UAFTA preferential treatment because they will meet the requirements of HTSUSA General Note 28(b)(ii)(A) when U.S. fabric is used, and Note 28(n), Chapter 66 rule (1.) when Japanese fabric is used.

The applicable subheading for the models Boulevard, Monaco, Pavilion, and Quasar made of the PTFE fiberglass fabric will be 7019.90.1000, HTS, which provides for glass fibersand articles thereofother: woven. The general rate of duty will be 4.8 percent ad valorem.

The models Boulevard, Monaco, Pavilion, and Quasar made of the PTFE fiberglass fabric originating in the U.S. will qualify for UAFTA preferential treatment because they meet the requirements of HTSUSA General Note 28(b)(ii)(A). When Japanese fabric is used GN 28(n), Chapter 70 rule (19.) must be consulted. It states:

A change to heading 7019 from any other heading, except from headings 7007 through 7020.

Because both the fabric and the finished items are classified in heading 7019, the terms of the note are not met and the models Boulevard, Monaco, Pavilion, and Quasar made of the Japanese PTFE fiberglass fabric will not qualify for UAFTA preferential treatment.

Where the above models qualify for UAFTA preferential treatment, they will be entitled to a Free rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 646-733-3102.

Sincerely,

Robert B. Swierupski
Director,

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