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