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HQ W968429




November 9, 2007

CLA-2 OT: RR: CTF: TCM W968429 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9490; 3926.90.9980

Les Suzuki
Livingston International Consulting Group 1140 West Pender Street
Suite 720
Vancouver BC
Canada V6E 4H5

RE: Reconsideration of Headquarters Ruling Letter 088886, dated July 9, 1991; Classification of current Bambi Bucket

Dear Mr. Suzuki:

This letter is in response to your request of September 20, 2006, for reconsideration of Headquarters Ruling Letter (HQ) 088886, dated July 9, 1991. In that ruling, Customs and Border Protection (CBP) determined that the Bambi Bucket was classifiable under subheading 6307.90.9490, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as an "other made-up textile article." We have reviewed HQ 088886 and find it to be correct.

FACTS:

The subject imports, known as Bambi Buckets, are collapsible devices that are used by helicopters to collect and transport water or foam directly to a forest fire. The bucket system includes an outward opening dump valve that allows a solid column of water or foam to be placed on target with precision. In HQ 088886, CBP described the Bambi Bucket as a "a non-rigid shell composed of welded polyester or nylon scrim material. Fiberglass battens housed in sidewall pouches on the shell act as a flexible frame for the bucket.... At the bottom of the bucket is a nylon fabric dump valve and several nylon purse lines." Other components of the bucket include aluminum supports, steel cable and a solenoid valve release mechanism1. The newest version of the product also contains a mechanical valve that can regulate the flow of water. To be utilized, the Bambi Bucket is attached to the hook on the helicopter's hoist. The bucket is then filled by lowering it into a suitable water supply, such as a lake or a river. Once it hits the water surface, the lead shot ballast causes the bucket to rapidly tip over and sink. To empty the bucket the trip line to the valve is released by the solenoid mechanism in the control head. The weight of the water in the bucket forces the fabric valve out through the bottom of the bucket, resulting in a rapid release of the water in a narrow water dump pattern for more effective fire control. The water is not propelled out of the bucket by a mechanical appliance but instead operates via gravity. In HQ 088886, we determined that the Bambi Bucket, comprised of welded polyester or nylon scrim material, was classifiable under subheading 6307.90.9490, HTSUSA.

On September 20, 2006, you sent a request for reconsideration of HQ 088886, and for clarification of the appropriate tariff classification. Attached to the reconsideration request was a sample swatch of the material that was said to be the material used in the manufacture of the Bambi Bucket. The material is a noncellular polyvinyl chloride (PVC) sheeting reinforced with an embedded polyester or nylon fabric, i.e. the polyester or nylon fabric is covered on both sides by the PVC sheeting. The material is different from that described in HQ 088886.

We find the Bambi Bucket classified in HQ 088886 and the bucket made of the newer PVC coated polyester to be two different articles. We will therefore consider them separately for classification purposes.

ISSUE:

(1) Was CBP's determination in HQ 088886 correct? (2) What is the proper classification, under the HTSUS, for the Bambi Bucket composed from the PVC sheeting?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows2:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90 Other:
3929.90.99 Other

3926.90.9980 Other

6307 Other made up articles, including dress patterns: 6307.90 Other:
Other:
6307.90.98 Other:
6307.90.98893 Other

8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Other appliances:
8424.89.0000 Other

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: 8479.89 Other:
8479.89.98 Other
8479.89.9897 Other

In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Note 1(h) to Section XI4 provides, in pertinent part:

1. This section does not cover:

(h) Woven, knitted, or crocheted fabrics, felts or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof of chapter 39....

Note 2 to Chapter 59 provides, in pertinent part:

2. Heading 5903 applies to:

(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than: (3) Products in which the textile fabric is either completely embedded in the 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 (Chapter 39)....

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The General ENs to Chapter 39 provide, in pertinent part:

...the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI...and Note 2 to Chapter 59. 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 colour[.]

As a threshold matter, we note that both Bambi Buckets are composite articles made of textile materials and various other components. The original bucket classified in HQ 088886 was made of welded polyester or nylon scrim and various metal components. The newer Bambi Bucket is composed of PVC sheeting reinforced with an embedded polyester or nylon fabric and various metal components. Generally, textile fabrics which have been impregnated, coated, covered or laminated are classified under chapter 59, HTSUS. Textiles which are "completely embedded in the plastics," however, are excluded from that chapter. See Note 1(h) to section XI, Note 2 to chapter 59, and the General ENs to chapter 39. Such fabrics are classifiable instead under chapter 39, which provides, in part, for "plastics and articles thereof." The sample you provided is a textile material which is completely embedded in PVC sheeting. By application of Note 1(h) to section XI, Note 2 to chapter 59, and the General ENs to chapter 39, it is excluded from chapter 59, and classifiable instead as an article of plastic under chapter 39, HTSUS

According to GRI 3(b), composite goods are to be classified "as if they consisted of the material or component which gives them their essential character...." The term "essential character," refers to "the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article." HQ 956538, dated November 29, 1994; See also Better Home Plastics Corp. v. United States, 20 CIT 221; 916 F. Supp. 1265 (1996). We find that the essential character of the original Bambi Bucket was imparted by the welded polyester or nylon scrim material. That material was indispensable to the structure, core and condition of the Bucket. For the same reason, the essential character of the newer version of the Bambi Bucket is imparted by the PVC sheeting which is reinforced with man-made fabric. Each bucket should therefore be classified as if it consisted of the material that imparts the essential character.

We will first consider the correct classification of the original Bambi Bucket. In HQ 088886, the textile material under consideration was composed of welded polyester and nylon scrim material. Articles composed of such material, which are not more specifically provided for elsewhere, are classifiable under chapter 63, HTSUS, which provides, in part, for "other made up textile articles." CBP's determination that the original Bambi Bucket was classifiable in heading 6307, HTSUS, was therefore correct. We next consider the newer Bambi Bucket. As an article composed of PVC sheeting reinforced with an embedded polyester or nylon fabric, the newer Bucket is classifiable as an article of plastic under chapter 39, HTSUS.

In the request for reconsideration you proposed heading 8424, HTSUS, as an alternative classification. That heading applies to mechanical appliances which are designed to project or spray liquids. See HQ 966611, dated January 7, 2004 (A pressurized can which delivers a mixture of chemical ingredients outfitted on a commercial aircraft was classified under heading 8424, HTSUS); and HQ 966948, dated July 30, 2004 (A simple piston spray pump was classified under heading 8424, HTSUS). The subject article does not operate in this manner. When opened by the helicopter pilot, water is released from the bucket due to the force of gravity rather than due to internal propulsion. Because the Bambi Bucket is not a mechanical appliance designed to project or spray liquid, it is excluded from classification in heading 8424, HTSUS.

You also ask that consideration be given to heading 8479, HTSUS, which provides for "machines and mechanical appliances having individual functions, not specified or included elsewhere." In order to be classified within this heading, the Bambi Bucket must be identifiable as a "machine or mechanical appliance." Although both versions of the Bambi Bucket incorporated a valve, neither device is commercially known as a "machine." The manufacturer's website refers to the Bambi Bucket as a "foam compatible bucket system5." Various on-line manufacturers refers to the Bambi Bucket as a "fire fighting system6" and a "fire bucket7." The inclusion of a simple valve in this case does not raise the simple operating device to the level of a "machine." It is therefore excluded from heading 8479, HTSUS.

HOLDING:

By application of GRI 3(b), the original Bambi Bucket described in HQ 088886, composed of either welded polyester or nylon scrim material is classifiable under heading 6307, HTSUS. Specifically, it is classifiable under subheading 6307.90.9889, HTSUSA, which provides for "Other made up articles, including dress patterns: Other: Other: Other: Other." The 2007 general, column one rate of duty is 7 percent ad valorem.

By application of GRI 3(b), the Bambi Bucket composed of PVC sheeting reinforced with an embedded polyester or nylon fabric is classifiable under heading 3926, HTSUS. Specifically, it is classifiable under subheading, 3926.90.9880, HTSUSA, which provides for: "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other." The 2007 general, column one rate of duty is 5.3 percent ad valorem.

EFFECT ON OTHER RULINGS:

HQ 088886, dated July 9, 1991 is hereby affirmed

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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