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HQ 086548


April 12, 1990

CLA-2 CO:R:C:G 086548 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9050; 6306.22.9000

Ms. Ann Williams
A.N. Derringer, Inc.
30 West Service Road
Champlain, NY 12919-9703

RE: NYRL 842147 modified. Car shelters of woven plastics and steel poles are tents where fabric not coated on both sides with plastics; otherwise other articles of plastics. Structures; iron

Dear Ms. Williams:

This is in reference to NYRL 842147 of June 15, 1989, with respect to the tariff classification of a car shelter from Canada. Please reference your client Tempo Pool and Shelters, Inc.

FACTS:

The merchandise at issue consists of a tent-like structure, described as a Tempo Car shelter. The unit is constructed of electrostatically galvanized steel tubing, a woven polyolefin material covering, and lacing of unspecified materials for holding the covering to the tubes. Four types of polyolefin covering were submitted. The first is coated with clear plastics on one side; the second is coated with clear blue plastics on one side; the third is coated with gray non-transparent plastics on both sides; and the fourth is coated with brown non-transparent plastics on both sides. In all cases, the plastics coating is visible to the naked eye.

The shelter is used to protect cars, boats, equipment, and other items from winter's harsh effects. Illustrations provided with your ruling request indicate that the shelter is designed to anchor horizontally on a supporting wall.

In NYRL 842147, our New York office classified the shelter under subheading 7308.90.9090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other structures of iron or steel.

ISSUE:

Whether the instant merchandise is considered tents and, if so, whether they are considered articles of textiles under the HTSUSA?

LAW AND ANALYSIS:

Shelters Composed of Samples 1 or 2

Heading 6306, HTSUSA, provides for tents. The Ex- planatory Notes to the HTSUSA constitute the official interpreta- tion of the tariff at the international level. The Explanatory Notes to this heading define tents as follows:

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 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., mar- quees and tents for military, camping (including back- pack tents), circus, beach use. They are classified in this heading, whether or not they are presented complete with their tent poles, tent pegs, guy ropes or other accessories.

Caravan "awnings" (sometimes known as caravan annexes) which are tent-like structures are also re- garded as tents. * * * They consist of three walls and a roof and are designed to augment the living space provided by a caravan.

The definition of a tent in the Explanatory Notes is very broad and includes a variety of structures. There is nothing in the heading or the Explanatory Notes to preclude the classification of the car shelter at issue as a tent. Indeed, the illustrations provided display the completed car shelter as substantially similar in design to caravan awnings - explicitly included within heading 6306. The car shelter would therefore be considered a tent under the definition provided.

Note 1 to Chapter 63, HTSUSA, states that heading 6306 applies only to made up articles of textile fabrics. The car shelter consists of three components: the coated polyolefin plastic (considered a textile fabric under heading 5903) that makes up the roof, the lacings, and the steel tubing. The merchandise at issue, however, is provided for eo nomine in this chapter.

The fabric portion of the tent represents, including coat- ing, approximately 20% of the weight of the car shelter. We can therefore conclude that the tent is a made-up article of textile fabric, and that heading 6306 applies by means of GRI 1. See HRL 085550 of December 8, 1989 (screenhouses).

Shelters Composed of Samples 3 or 4

Samples 3 and 4 are coated on both sides with plastics.

Note 2(a)(3) to Chapter 59, HTSUSA, excludes such products from classification therein, and re-directs us to Chapter 39, where the fabric is completely embedded in plastics. The coverings for samples 3 and 4 are therefore not considered textile, and clas- sification in Section XI is excluded.

Heading 3926, HTSUSA, provides for other articles of plast- ics. Heading 7308 provides for, inter alia, structures of iron or steel. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule.

GRI 1 states, in pertinent part:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes ....

Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order.

GRI 3 states, in pertinent part:

When by application of Rule 2(b) [goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) [which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note (X) to GRI 3 provides, in pertinent part:

For the purposes of [GRI 3(b)], the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different head-

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking ....

[C]lassification [of sets and of composite goods] is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.

The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods.

In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure or condition of an article.

The plastic roof provides protection from the elements, while the steel poles merely support the roof. The roof provides more bulk and plays the major role in the use of the shelter. It is our opinion, therefore, that the essential character of the car shelter is imparted by the polyolefin roof. See also HRL 084128 of July 14, 1989 (dining canopy with roof of woven poly- ethylene strips and sides coated with a visible plastics material has essential character imparted by plastics portions, not steel supporting poles).

HOLDING:

As a result of the foregoing, the instant merchandise is classified ...

Constructed of Samples 1 or 2

... under subheading 6306.22.9000, HTSUSA, textile category 669, as tarpaulins, awnings and sunblinds, tents, sails for boats, sailboards or landcraft, camping goods, tents, of syn- thetic fibers, other. Articles which meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA) are subject to reduced rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is 8 percent ad valorem; otherwise, the general rate of duty is 10 percent ad valorem.

Constructed of Samples 3 or 4

... under subheading 3926.90.9050, HTSUSA, as other articles of plastics and articles of other materials of headings 3901 to 3914, other, other, other. If the merchandise constitutes "goods originating in the territory of Canada," the applicable rate of duty is 4.2 percent ad valorem; otherwise, the general rate of duty is 5.3 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 agree- ments 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 res- traint (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.

This notice to you should be considered a modification of NYRL 842147 of June 15, 1989, as to the merchandise described as Tempo Car Shelters, under 19 C.F.R. 177.9(d)(1) (1989). It is not to be applied retroactively to NYRL 842147 (19 C.F.R. 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for the importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 842147 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to the release of HRL 086548 will be classified under the new ruling. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances.

Sincerely,

JOHN DURANT, DIRECTOR
COMMERCIAL RULINGS DIVISION

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