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NY C88763


June 24, 1998

CLA-2-63:RR:NC:TA:352 C88763

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

Mr. James C. McKelvey

Jinwoong, Inc., USA

3333 Yale Way

Fremont, CA 94538

RE: The tariff classification of greenhouse made with a metal tubing frame and with walls and roof made of woven fabric from China.

Dear Mr. McKelvey:

In your letter dated June 4, 1998 you requested a classification ruling. The sample is being returned to you as requested.

The submitted sample, style #GL101, is a greenhouse which is constructed with a metal tubular frame and a covering of fabric produced by weaving polyethylene strip and coating both sides with a clear coating, covering or lamination of polyethylene. The strips from which the covering material for the greenhouse is produced measure approximately 2 millimeters in width. The dimensions of these strips meet the requirements to be considered textile strips. The greenhouses are available in four sizes measuring at their base either 6' X 10', 9' X 10', 10' X 12' or 10' X 15'. The metal frame is assembled by use of plastic joints and comes equipped with metal fittings which facilitate the attachment of shelves to the frame. The green house covering is sewn from panels of the fabric described above and features roll back front door and a roll down window. The fabric covering of this green house is attached to the frame by means of hook and loop closures. The green house is packed in a specially designed textile carrying bag.

The clear coating, covering or lamination of polyethylene that has been applied to both sides of the woven fabric that is used to manufacture this greenhouse does not transform the fabric into a plastic material. Note 2 to Chapter 59, Harmonized Tariff Schedule of the United States,(HTS), defines the scope of heading 5903, under which textile fabrics which are coated, covered, impregnated, or laminated with plastics are classifiable and defines in part the treatment of textile fabric combined with plastics. Note 2 states in part that heading 5903, HTS, applies to:

(A) Textile fabrics, impregnated, coated, covered or
laminated with plastics, whatever the weight per square meter and whatever the nature of the plastics material (compact or cellular), other than:

(1) Fabrics in which the impregnation coating or
covering cannot be seen with the naked eye (usually
chapter 50 to 55, 58 or 60); for the purpose of this
provision, no account should be taken of any resulting
change in color;

(3) Products in which in which the textile fabric is either completely imbedded in plastics or entirely coated or covered on both sides with such material, provided such coating or covering can be seen with the naked eye with no account being taken of any resulting change in color (chapter 39).

Since the clear plastic coating or lamination of the polyethylene woven panels that form the greenhouse covering is not visible to the naked eye, the fabric would not be considered coated for the purposes of classification in heading 5903, HTS, nor would it be considered a plastic material. Therefore the covering of this green house would be considered a made up article of textile woven fabric.

Your correspondence suggests that you believe that this product is classifiable as a prefabricated building in subheading 9406.00.8090, HTS. We cannot agree with this contention. Although the Explanatory Notes to heading 9406 do mention certain greenhouses as within the scope of that heading, the notes go on to specify certain design features which characterized a prefabricated building. The greenhouses before us for consideration do not share these characteristics and is not the type of construction described in the Explanatory Notes. Therefore this product is not of a type that falls within the scope of heading 9406, HTS.

Your letter also indicates that you believe that the provision for machinery, equipment and implements to be used for agricultural or horticultural purposes in subheading 9817.00.5000, HTS, may apply to the greenhouse you contemplate importing. Chapter 98, Subchapter XVII, U.S. Note 2(e) provides:

2. The provisions of headings 9817.00.50 and 9817.00.60 do not apply to:

(e) articles of textile material.

Since we have determined that the outer covering (the walls and ceiling) for these greenhouses is a textile material and that this textile material provides the greenhouse with its essential character, classification in subheading 9817.00.5000, HTS, is precluded by operation of Additional U.S. Note 2(e) to Subchapter XVII of chapter 98.

The applicable subheading for the greenhouses including their carrying bags will be 6306.22.9030, Harmonized Tariff Schedule of the United States (HTS), which provides for tents, of synthetic fibers, other, other. The duty rate will be 9.5 percent ad valorem.

This product falls within textile category designation 669. Based upon international textile trade agreements products of China are subject to quota and the requirement of a visa.

The designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. 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.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Tytelman at 212-

466-5896.

Sincerely,


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