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HQ 955150


February 23, 1994

CLA-2 CO:R:C:M 955150 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7610.90.00

Mr. Tom Staub
R.A.V. Services Inc.
147-22 Farmers Blvd.
Jamaica, New York 11434

RE: Aluminum structure for swimming pool covering system; GRI 2 (a); incomplete article; EN Rule 2 (a); essential character; condition as imported; U.S. vs. Citroen; HRL 954785

Dear Mr. Staub:

This is in response to your letter dated September 21, 1993, on behalf of Swim All Seasons USA, to Customs in New York, regarding the tariff classification of an aluminum structure for a swimming pool covering system under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, together with a copy of a portion of a brochure for the pool covering system, was forwarded to this office for a response.

FACTS:

The article in question is the aluminum structure component of a swimming pool covering system. The cover is elliptical shaped and divided into sections or vaults. All vaults may be installed to remain fixed in place over a pool or individual vaults may be installed so that they are movable to open the pool area. The movable vaults are guided and anchored at the base in tracks and when moved, collapse into each other much like a telescope.

The pool cover consists of imported aluminum arches with U.S. made acrylic side panels and a U.S. made polycarbonate top panel. The side panels are transparent and can be raised, much like a garage door, manually and simultaneously to slide under the top panel. They may also remain down to insulate the covered area and trap sunlight to heat the water in the pool. Because of the movable side panels and the individually movable vaults, the swimming pool cover is considered openable both vertically and horizontally.

The structure's width and length vary according to the size of the pool. It can be centered over the pool or not, depending upon whether a "beach" area is desired. Additionally, the structure can be attached to a wall or the front of a house.

ISSUE:

What is the tariff classification of the aluminum structure component for a pool cover system under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1, HTSUS, states, in pertinent part, that for legal purposes, 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 applied in descending order. GRI 2 (a), HTSUS, states:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN Rule 2 (a), p. 2, states that:

(I) [t]he first part of Rule 2 (a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article.

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, core or condition of the article. In addition, EN Rule 3 (b), p. 4, provides further factors which help determine the essential character of the goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods.

We are of the opinion that the panel components, not the aluminum structure component, provide the essential character of the pool covering system. The panel components protect the pool from the elements and insulate the covered area. Additionally, the panel components' transparent design traps sunlight which heats the water in the pool. The panel component therefore, is the component which marks or serves to distinguish the completed pool covering system. As the aluminum structure without the panel components does not have the essential character of the completed pool covering system, it cannot be classified as an incomplete pool covering system.

This is consistent with our findings in Headquarter's Ruling Letter (HRL) 954785, dated September 22, 1993, which held that the shade cloth, not the steel structure, of a shade house system for plants provided the article's essential character. The shade cloth was found to impart the essential character of the shade house system because it was the component that protected plants from sunlight.

It is well settled that, classification is based upon the condition of an article at the time of importation. U.S. vs. Citroen, 223 U.S. 407 (1911). Therefore, classification is based on the aluminum structure's condition as imported. Pursuant to GRI 2 (a), HTSUS, the unassembled aluminum structure is classified in the same heading as an assembled aluminum structure.

We are of the opinion that the aluminum structure is classified under subheading 7610.90.00, HTSUS, which provides for, [a]luminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge- sections, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles, tubes and the like, prepared for use in structures: [o]ther.

HOLDING:

The aluminum structures for the swimming pool covering system are classifiable under subheading 7610.90.00, HTSUS, which provides, in pertinent part, for aluminum structures and parts of structures, with a column one rate of duty of 5.7 percent ad valorem.

Sincerely,

John Durant, Director

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