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HQ 087562


August 15, 1990

CLA-2 CO:R:C:G 087562 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

Ms. Judy Duckworth
Schenkers International Forwarders, Inc.
P.O. Box 39945
Denver, CO 80239-0945

RE: Canopies composed of steel poles and coated polyester roof is a tent. Carrying bag is classified with canopy as container under GRI 5. Awning; marquee; beach

Dear Ms. Duckworth:

This is in reply to your letter of July 10, 1990, concerning the tariff classification of canopies, produced in Taiwan, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Please reference your client KD Kanopy, Inc.

FACTS:

The merchandise at issue consists of a 100% polyester portable "awning," the KD Kanopy , and accompanying carrying bag. Your brochure shows that the Kanopy is a roof supported by four poles, and is imported with or without panels covering the lower half of the sides. The brochure also states that

[t]he KD Kanopy goes up in less than 30 seconds, with no guy ropes, assembly or loose parts. Its unique design allows height adjustments up to 8' (2.44m). The sturdy frame is high-strength steel, while covers are crafted from tough, waterproof oxford cloth with a fire-retardant urethane coating treated to resist the Sun's rays.

ISSUE:

Whether the KD Kanopy is a tent, awning, or other made up article?

LAW AND ANALYSIS:

Heading 6306, HTSUSA, provides for, inter alia, awnings and tents of textile materials. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA.

The EN to heading 6306 states, in pertinent part:

(3) Awnings, sunblinds (for shops, caf‚s, etc.). These are designed for
protection against the sun; they are generally made of strong plain or striped canvas, and may be mounted on roller or folding mechanisms. They remain classified in this heading even when provided with frames, as is sometimes the case with sunblinds.

(4) Tents are shelters made of lightweight to fairly heavy fabrics of man-made fibres, cotton or blended textile materials, whether or not coated, covered or laminated, or of canvas.
They usually have a singly 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 presented complete with their tent poles, tent pegs, guy ropes or other accessories.

Webster's II New Riverside University Dictionary (1984) defines the instant terms as follows:
awning A protective, rooflike covering, as over a window or door.

The instant merchandise is clearly not an awning as provided for in heading 6306. The EN makes it clear that those articles are designed to mount over doors and windows to provide shelter and protection against the sun to those entering a building or using a window.

Webster's continues with the following:
tent A portable shelter ... stretched over a supporting framework of poles with ropes and pegs.
marquee A large open-sided tent, used chiefly for outdoor entertainment.

Illustrations in your brochure depict people gathered under these canopies for various purposes, including sporting events and exhibitions. While marquees are normally associated with festive events, it is our opinion that the KD Kanopy is so closely identified with those type of shelters as to be easily categorized in a description as broad as "tents of various sizes and shapes." We note also that beach tents are often constructed without walls. The KD Kanopy , with or without walls, is therefore classifiable in heading 6306, HTSUSA.

As we stated above, the KD Kanopy is imported with a plastic carrying bag. In HRL 084352 of May 31, 1990, we addressed the issue of classification of canopy bags imported with their canopies. The conclusion found therein, replicated below, is binding on the instant merchandise.

Classification of goods under the HTSUSA is governed by the General Rules of
Interpretation (GRI), taken in order. GRI 5(a) provides that camera cases, musical
instrument cases, . . . and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith.

The importer states that the nylon top is imported and sold in a duffle bag that is intended to protect it from becoming dirty or torn. [We assume the instant bag serves the same purpose.] * * * The Explanatory Notes to GRI 5(a) provide that the rule covers containers which: (1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended, (2) are suitable for long-term use, i.e., designed to have a durability comparable to that of the articles for which they are intended, (3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport, (4) are of a kind normally sold with such articles, and (5) do not give the whole its essential character.

According to the importer, the bag is designed to store the top to provide protection. It is made of the same material as the top with comparable durability. The top is imported and sold in the bag, and the bag cannot be said to affect the essential character of the whole, which is clearly imparted by the top.

The carry bag is intended to hold the entire canopy unit. The bag is designed to hold the canopy unit. It is made of the same material as most of the other pieces with comparable durability. It is imported and sold with the unit and does not affect the essential character of the whole. Both the duffle bag and the carry bag are classified with the canopy unit.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 6306.22.9030, HTSUSA, textile category 669, as tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods, tents, of synthetic fibers, other, other. The applicable rate of duty is 10 percent ad valorem.

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 negotiations 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 issuance
of the U.S. Customs Service, which is updated weekly and is available at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

JOHN DURANT, DIRECTOR

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