December 10, 2009 CBP Bulletin Notice on Classification of Pressure-Mounted Safety Gates
In the December 10, 2009 issue of the U.S. Customs and Border Protection Bulletin (Vol. 43, No. 50), CBP published a notice proposing to modify one ruling and revoke a treatment as follows:
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Proposed modification of ruling; proposed revocation of treatment. CBP is proposing to modify one ruling on the classification of pressure-mounted safety gates. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed modification and revocation, or any party involved with a substantially identical transaction, should advise CBP by January 11, 2010, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Pressure-mounted safety gates. The merchandise is identified as the 'Position and Lock' memory fit pressure gate, style 202. The product is described as a pressure gate that mounts into openings without hardware. It consists of two sliding panels composed of plastic mesh in a wood frame. A divided wood bar with notches and a locking clamp runs across the center of the panels and holds the gate in its desired position.
CBP is proposing to issue HQ 045151, in order to modify NY L83194, and reclassify the pressure mounted safety gates under HTS 3924.90.56 as other household articles of plastics rather than under HTS 3925.90.00 as builder's ware of plastics.
CBP proposes this change as a correction based on the Explanatory Notes (ENs) and prior rulings. It has already been established that the subject gate's plastic mesh imparts its essential character, that aspect of the initial ruling remains unchanged.
The EN to 39.24 explains that the heading covers, among other things, "other household articles of plastics," and explicitly excludes those articles that are capable of permanent installation. It has been CBP's view that articles of plastic designed for permanent installation are classified in heading 3925 as "builders' ware of plastics."
In Headquarters ruling HQ 957260, dated April 4, 1995, CBP classified a plastic-framed safety gate capable of being permanently installed, or pressure-mounted, as "builder's ware of plastic" under subheading 3925.90.56. In reaching that conclusion, it was explained that it is distinguished from pressure-mounted safety gates because it could be permanently installed in the desired area by mounting hardware.
CBP has consistently classified safety gates that are not capable of being permanently installed as " other household articles." SeeNY M85234, August 15, 2006, (pressure-mounted safety gate with essential character of steel classified in heading 7323, as "table, kitchen or other household articles and parts thereof, of iron or steel ..."); NY J89558, October 29, 2003 (pressure-mounted safety gate with essential character of metal mesh classified in heading 7323, as "table, kitchen or other household articles and parts thereof, of iron or steel "); NY B85275 May 22, 1997 (portable safety gate made of plastic-coated steel classified in heading 7323 as "table, kitchen or other household articles and parts thereof, of iron or steel ").
CBP states that the essential character of the subject gate is that of plastic and, because the gate is not capable of permanent installation, the applicable heading for the gate should be heading 3924.
CBP now proposes that by application of GRI 3, the subject merchandise identified as the "'Position and Lock' memory fit pressure gate, style 202" is classifiable under subheading 3924.90.56 which provides for "Tableware, kitchenware, other household articles and hygienic or toilet articles; of plastics: Other: Other."
Proposed: 3924.90.56, 3.4%; Current: 3925.90.00, 5.3%
December 10, 2009 CBP Bulletin (Vol. 43, No. 50) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/