CLA-2-39:OT:RR:NC:N4:421
Ms. Linda K. Tiller
Husch Blackwell LLP
4801 Main Street, Suite 1000
Kansas City, MO 64112
RE: The tariff classification of flexible fencing from China
Dear Ms. Tiller:
In your letter dated August 11, 2012, on behalf of Web Direct Brands, Inc., you requested a tariff classification ruling.
The imported product is described as flexible safety pool fencing. The fencing is intended for use around swimming pools to prevent access by small children and animals, but can also be used as a barrier to prevent access to other areas. The fencing is constructed using two different types of materials. Sample swatches of the two materials were included. The material described as “large hole mesh” is an open mesh woven fabric with square holes that are approximately 5 mm in length and width. This mesh is made from 100 percent polyester fibers woven to form a fabric which is then dipped in polyvinyl chloride (PVC) plastic to form a thick coating on both sides that is visible to the naked eye. You state that the weight of the PVC coating is greater than 70 percent of the total weight of the material.
The material described as “small hole mesh” is an open mesh woven fabric with square holes that are less than 5 mm in length and width. This mesh is made from 100 percent polyester fiber yarns that are individually coated with PVC plastic coating and are then woven to form a fabric. These are textile yarns and the fabric they form are likewise considered to be textile for tariff purposes. After the coated yarns are woven, the fabric is heat set. You state that the weight of the PVC coating is greater than 70 percent of the total weight of the material.
The edges of both the large hole mesh and the small hole mesh are finished with an applied reinforcing material folded over the edges to form a one-inch border that is sewn onto the mesh material with three rows of stitching. The mesh is secured at regular intervals to stainless steel posts to form a complete removable safety pool fence. The posts are of two-piece construction, with a flatter piece fitting onto one side of the mesh and a rounded piece fitting onto the reverse side of the mesh. The two pieces of each post are permanently joined by metal fasteners. The stake-like bottom ends of the posts are covered by plastic caps for protection during transport. After importation the mesh fencing with the permanently attached posts is unrolled, the safety caps on the stakes are removed, and the stakes are inserted into the ground to hold the fencing taut.
You suggest classification of the large hole mesh fencing in subheading 3921.90.1950, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other plates, sheets, film, foil and strip of plastics, combined with a single textile material, other, weighing not more than 1.492 kg per square meter. Although you are correct that this type of construction is considered to be of plastics of chapter 39, the presence of the large holes precludes this product from classification as sheet of heading 3921. Note also that legal note 10 to Chapter 39 states, “In headings 3920 and 3921, the expression ‘plates, sheets, film, foil and strip’ applies only to plates, sheets, film, foil and strip (other than those of chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface worked, uncut or cut into rectangles (including square) but not further worked.…” The imported mesh sheets have been further worked by the addition of the applied border of reinforcing material and by the permanently attached posts.
The applicable subheading for the pool fencing made of the large hole mesh material, which is constructed of woven fabric that is completely embedded in plastics, will be 3925.90.0000, HTSUS, which provides for builders’ ware of plastics, not elsewhere specified or included: other. The rate of duty will be 5.3 percent ad valorem.
You suggest classification of the small hole mesh fencing in subheading 5903.10.2010, HTSUS, which provides for textile fabrics impregnated, coated, covered or laminated with plastics, with poly(vinyl chloride): of man-made fibers: over 70 percent by weight of rubber or plastics, fabrics of yarns sheathed with poly(vinyl chloride), not otherwise impregnated, coated, covered or laminated. Although you are correct that this type of mesh construction is considered to be a coated textile fabric of Section XI, HTSUS, the imported product is considered to be “made up” according to the terms of legal note 7 to Section XI by the addition of the applied border of reinforcing material and the attached posts.
The applicable subheading for the pool fencing made of the small hole mesh material, which is constructed of PVC coated yarns that are then woven and heat set, will be 6307.90.9889, HTSUS, which provides for other made up textile articles, other. The rate of duty will be 7 per cent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
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 Joan Mazzola at (646) 733-3023.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division