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HQ 954621


December 20, 1993

CLA-2 CO:R:C:T 954621 886909

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

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

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