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HQ 957547




July 14, 1995

CLA-2 R:C:T 957547 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

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
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.

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

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