CLA-2 CO:R:C:T 954621 886909
Paul Hsieh
Vice-President
LifeGear, Inc.
300 Round Hill Drive
Rockaway Township, NJ 07866
RE: Reconsideration of NYRL 886909; tariff classification of a
gazebo; plastic coating not visible to naked eye; Note 2(a)
to Chapter 59
Dear Mr. Hsieh:
This letter is in response to your request for
reconsideration of New York Ruling Letter (NYRL) 886909, which
concerned the classification of a gazebo. Samples were submitted
for examination.
FACTS:
You have submitted a photo of the gazebo along with
representative swatches of the material of which it is
constructed. The swatches are made of woven polyethylene white
strips. There is a clear application of plastic on both sides of
the swatches with colored stripes printed on one side. The
fabric covers the roof and corners, but there are no sides or
floor. In addition, the gazebo has a metal frame and includes
ground stakes.
In NYRL 886909, dated June 16, 1993, we found that the
subject merchandise was not coated with plastics for tariff
purposes and therefore was classified under subheading
6306.22.9030 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for tarpaulins, awnings
and sunblinds; tents; sails for boats, sailboards or landcraft;
camping goods: tents: of synthetic fibers: other, other. You
contend that the this merchandise is coated with plastics on both
sides and therefore should be classified as an article of
plastics as opposed to an article of textiles.
ISSUE:
Whether the submitted merchandise is considered an article
of plastics or an article of textiles for tariff classification
purposes?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
Chapter 59, HTSUSA, provides for impregnated, coated,
covered or laminated textile fabrics. Chapter Note 2(a)(3) to
this section excludes products in which the textile fabric is
coated or covered on both sides with plastic; such products are
classifiable within Chapter 39 provided that such coating or
covering can be seen with the naked eye with no account being
taken of any resulting change of color. If classifiable as of
plastic, the subject merchandise is classifiable in Heading 3926,
HTSUSA, which provides for other articles of plastics.
In applying Note 2(a)(3) to Chapter 59 we stated the
following in Headquarters Ruling Letter (HRL) 950542 of March 2,
1992:
The sole criterion upon which Customs is to
determine whether fabric is coated for purposes of
classification ... is clear and unambiguous: fabric is
coated and is classifiable in Chapter 39 if the plastic
coating is visible to the naked eye. This standard
does not allow the examiner to take the "effects" of
plastic into account. Plastic coating will often lend
a sheen to fabric, result in a change of color, or
increase a fabric's stiffness; these are factors which,
while indicative of the presence of plastic, may not be
taken into account in determining whether the plastic
itself is visible to the naked eye.
Although the plastic on the side with the colored stripes is
easily separated, by hand, from the underlying fabric, making the
layer of plastic clearly visible, the plastic on the other side
is not visible to the naked eye. The requirement for
classification as an article of plastics is that the merchandise
must be coated on both sides. Since the merchandise at issue is
only coated on one side, in application of Note 2(a)(3) to
Chapter 59, it cannot be considered an article of plastics for
tariff classification purposes.
Heading 6306, HTSUSA, provides for tents, among other
articles. The Harmonized Commodity Description and Coding
System, Explanatory Notes, the official interpretation of the
HTSUSA at the international level, at page 867, defines tents as
the following:
... shelters made of lightweight to fairly heavy
fabrics of man-made fibers, cotton or blended textile
materials, whether or not coated, covered or laminated,
or of canvas. They usually have a single or double
roof and sides or walls (single or double), which
permit the formation of an enclosure. The heading
covers tents of various sizes and shapes, e.g.,
marquees and tents for military, camping (including
backpack tents), circus, beach use. They are
classified in this heading, whether or not they are
presented complete with their poles, tent pegs, guy
ropes or other accessories.
In addition, Webster's II New Riverside University Dictionary
(1984) defines a tent as "a portable shelter... stretched over a
supporting framework of poles with ropes and pegs."
We have found that based on the Explanatory Notes and
Webster's Dictionary that tents are articles that are designed as
shelters. (See HRL 089237 of May 10, 1991.) The gazebo at issue
is designed as a shelter. In addition, we ruled in HRL 086520 of
March 6, 1990 that a gazebo was classified as a tent of Heading
6306. Consequently, the merchandise at issue is classified in
Heading 6306.
HOLDING:
The merchandise at issue is classified under subheading
6306.22.9030, HTSUSA, which provides for tarpaulins, awnings and
sunblinds; tents; sails for boats, sailboards or landcraft;
camping goods: tents: of synthetic fibers: other, other. The
rate of duty is 10 percent ad valorem, and the textile category
is 669.
NYRL 886909, dated June 16, 1993, is affirmed.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importation of this merchandise to determine the current
status of any import restraints or requirements.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Sincerely,
John Durant, Director
Commercial Rulings Division