CLA-2 R:C:T 957547 CMR
District Director
U.S. Customs Service
111 W. Huron Street
Buffalo, New York 14202-2378
RE: Protest 0901-94-101427 with Application for Further Review;
Classification of truck tents; Eligibility for preferential
duty treatment under the North American Free Trade Agreement
(NAFTA); Article 509
Dear Sir:
This is in response to a protest, timely filed, by xxxxx
xxxxx xxxxxxxxxxxxx, Inc., against your decision to deny two
entries of certain truck tents from Canada preferential duty
treatment under the NAFTA. Classification of the merchandise in
subheading 6306.22.9030, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) is not in dispute.
FACTS:
Two entries of truck tents entered on March 22, 1993 and May
5, 1994, respectively, and liquidated on July 1, 1994 and August
1, 1994, respectively, are the subject of this protest timely
filed on September 21, 1994.
The tents were entered under subheading CA6306.22.9030,
HTSUSA, and liquidated under subheading 6306.22.9030, HTSUSA.
Subheading 6306.22.9030, HTSUSA, provides for tents of synthetic
fibers, other than backpacking tents or screen houses.
The truck tents are manufactured in Canada from Korean
origin fabric. The nylon fabric is sized, cut and made into
tents in Canada.
The dispute is whether the tents at issue qualify for
preferential duty treatment under the NAFTA. In support of
protestant's claim that the goods do qualify, the protestant
submits that the exporter has established the truck tents qualify
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for reduced duties under the NAFTA. As evidence of this,
protestant has provided Customs with:
1. Copies of a facsimile transmittal dated July 7, 1994,
which includes a copy of the Canada Customs entry form for
the importer of the fabric. The form indicates importation
of fabric from Korea identified as polyurethane coated nylon
taffeta fabric entered under subheading 5903.20, Harmonized
Tariff System (HTS).
2. Copies of a letter dated August 9, 1994, and the
accompanying enclosure which was a Textile Declaration
prepared by the Canadian producer stating the Korean nylon
fabric is manufactured into tents in Canada by sizing,
cutting and assembly.
3. A copy of a certificate of origin certifying NAFTA
treatment.
In order to qualify for the NAFTA preferential duty rate,
the truck tents at issue must meet the requirements to qualify as
an "originating" good which are set out in General Note 12 of the
HTSUSA. The protestant claims these requirements have been met,
specifically, the goods have undergone a change in tariff
classification described in General Note 12(t)/63.4. You
disagree.
The disagreement is based upon your belief that the fabric
with which the tents are made is classified in heading 5407,
HTSUS, which provides for woven fabric of synthetic filament
yarn. Protestant claims the fabric is classified as a coated
fabric of heading 5903, HTSUS. If the fabric is classified in
heading 5407, HTSUS, then the goods do not qualify as originating
under General Note 12(t)/63.4. If the fabric is classified in
heading 5903, HTSUS, as claimed, then the goods do qualify under
General Note 12(t)/63.4.
ISSUE:
Is the fabric from which the tents at issue are made
classifiable in heading 5903, HTSUS, as coated fabric, or is it
classifiable in heading 5407, HTSUS, as woven fabric of synthetic
filament yarn?
Do the tents at issue qualify for preferential duty
treatment under the NAFTA?
LAW AND ANALYSIS:
As stated above, the issue before us is whether the subject
truck tents meet the change in tariff classification described in -3-
General Note 12(t)/63.4. The required change is stated in the
note as:
A change to headings 6304 through 6310 from any other
chapter, except from headings 5106 through 5113, 5204
through 5212, 5307 through 5308 or 5310 through 5311,
chapters 54 through 55, or headings 5801 through 5802 or
6001 through 6002, provided that the good is both cut (or
knit to shape) and sewn or otherwise assembled in the
territory of one or more of the NAFTA parties.
If the Korean fabric from which the tents are made is
classifiable in heading 5903, HTSUS, as claimed, the tents will
meet the cited tariff change. If the fabric is classified in
heading 5407, HTSUS, they will not.
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
Note 2, Chapter 59, states in relevant 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:
(1)Fabrics in which the impregnation, coating or
covering cannot be seen with the naked eye
(usually chapters 50 to 55, 58 or 60); for
the purpose of this provision, no account
should be taken of any resulting change of
color;
* * *
NAFTA preferential duty treatment was rejected upon
liquidation because your port believed that the polyurethane
coating on the nylon fabric from which the tents are made is not
visible to the naked eye. Therefore, the fabric cannot be
classifiable in heading 5903, HTSUSA, but is classifiable in
heading 5407, and the subject tents fail to meet the required
tariff shift.
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The National Import Specialist who handles this merchandise
has examined a submitted fabric sample and agrees with your
assessment that the coating on the fabric is not visible to the
naked eye. This office has also examined the fabric sample and
agrees.
Although the fabric was entered into Canada from Korea under
subheading 5903.20, HTS, Customs cannot ignore the legal notes of
the HTS and Customs own assessment of the subject fabric. If we
cannot see the coating on the fabric with normal corrected
vision, i.e., 20/20 vision, we cannot consider it a fabric of
heading 5903, HTSUS, for application of General Note 12(t)/63.4.
As the fabric from which the tents are made is not a fabric
of heading 5903, HTSUS, but a fabric of heading 5407, HTSUS, and
a change to heading 6306 from Chapter 54 is precluded by General
Note 12(t)/63.4, the subject goods fail to meet the required
tariff shift to qualify for NAFTA preferential duty treatment.
HOLDING:
The protest should be denied in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division