United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1996 HQ Rulings > HQ 959435 - HQ 959673 > HQ 959499

Previous Ruling Next Ruling
HQ 959499




September 12, 1996
CLA-2 RR:TC:TE 959499 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

Jack Griffiths
Creative Design
6412 Lago Grande Drive
Bonsall, CA 92003-4901

RE: Country of origin determination for tents; EN to heading 6306; Chapter Note 1(u) of Chapter 95; 19 CFR ?102.21(c)(5); last country in which an important assembly occurs; NAFTA not applicable

Dear Mr. Griffiths:

This is in reply to your letter dated June 5, 1996, which you supplemented with additional information on August 14 and August 24, 1996, requesting a tariff classification determination under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) and a country of origin determination for certain tents which will be imported into the United States. Color photographs of the tents in question were submitted to this office for examination.

FACTS:

The subject merchandise consists of what you refer to as "toy tents" and "playpens" for children, made of nylon and polyester mesh fabrics. As per a conversation with a member of my staff, you stated that you were given verbal advise from a Customs officer in California stating that the subject merchandise is classifiable as tents, and not toys, with a subsequent increase in duties. In your opinion the subject merchandise should be classified as toys. As such you would like confirmation of the appropriate tariff classification for this merchandise.

The tents in question are:

1. Ball Pit, measures 48 inches by 48 inches by 48 inches and is in the form of a square dome. The entrance panel and floor are made of light nylon taffeta and the other three walls are made of polyester mesh. The floor is normally covered with plastic balls which a child can play with once inside the tent. You state that the tent is imported without the balls and that once in the United States, the tents are assembled with other components such as the plastic balls.
2. Play Pen, measures 32 inches wide by 60 inches long by 26 inches high. The floor and end panels are made of light nylon taffeta and the side walls are of sunscreen type polyester mesh. You state that the tent gives some protection against the sun and is intended for small children to stand in and prevents the child from crawling away into dangerous situations.

3. Baby Tent, measures 27 inches wide by 46 inches long by 18 inches high. The floor is made of nylon taffeta, the end panels are of polyester mesh and the top cloth is made of 100 percent cotton (made in the USA). This tent is intended for babies up to five months of age.

4. Baby Cabana, measures 30 inches wide by 52 inches long by 24 inches high. The floor is made of nylon taffeta and the upper panels are made of polyester mesh. This tent is intended to give a baby shade and keep baby supplies off the sand or grass.

5. Animal, measures 30 inches wide by 52 inches long by 24 inches high. The tent is made of nylon taffeta with some polyester mesh. This tent comes in various colors and printing to simulate animals, fish, and reptiles. This tent is intended for children up to four years of age.

The manufacturing scenarios for all of the above stated tents are as follows:

KOREA

- nylon fabric is formed.

TAIWAN

- polyester mesh cloth is formed.

UNITED STATES

- cotton fabric is formed for top cloth for Baby Tent only.

MEXICO

- cutting, sewing and assembly.

* You state that materials such as wire, plastic tubing, thread, labels, and shipping cartons, are sourced in the United States and constitute part of the assembly process in Mexico. Additionally, the plastic balls for the ball pit tents are added in the United States and packaged for retail sale.

ISSUE:

1. What is the proper tariff classification for the subject merchandise?

2. Whether the subject merchandise is eligible for duty free treatment under the North American Free Trade Agreement (NAFTA)?

3. What is the country of origin of the subject merchandise?

LAW AND ANALYSIS:

Tariff Classification

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 6306, HTSUS, provides for, among other things, tents. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 6306 state:

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., marquees and tents for military, camping (including backpack 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.

As indicated by the above referenced EN to heading 6306, HTSUS, the definition of tents is broad enough to include many types of tents, including those which are not per se, "shelters", which provide protection against the elements. In fact, in the exemplars noting the tents covered by this heading, tents used for beach use are also listed. Tents used for beach use, similar to the subject Play Pen and Baby Cabana, do provide some protection against wind and sun, but are not "shelters". See also, HQ 088644, dated June 13, 1994, wherein merchandise claimed by the importer to be "tents for children" were classified as tents of heading 6306, HTSUS; and HQ 089149, dated July 30, 1991, affirmed in HQ 950217, dated December 19, 1991, wherein an official "NFL play tent" for children was similarly classified as a tent of heading 6306, HTSUS, despite the importer's claim that the tent was classifiable as a toy.

Chapter 95, HTSUS, provides for, among other things, toys. Chapter Note 1(u) to chapter 95, HTSUS, states that "this chapter does not cover racket strings, tents or other camping goods, or gloves (classified according to their constituent material)". As the subject merchandise is considered tents for classification purposes, they are exempt from inclusion in chapter 95, HTSUS.

You should also note that in regard to the Ball Pit tent, Customs has ruled on virtually identical merchandise in the past. Those rulings have held that when the ball pit tent is imported separately, without the balls, classification in heading 6306, HTSUS, is proper. However, in the situation where the merchandise consists of two components imported together, that is, the ball pit tent and balls, classification of the tent and balls would be in the "toy" provision of chapter 95, HTSUS. The rationale for this is that collection of items which are ordinarily separately classified in other headings are classified in chapter 95, HTSUS, when put up in a form clearly indicating their use as toys. That is to say the ball pit tent and balls work together to provide amusement. See, e.g., HQ 956974, dated November 23, 1994, which classified a ball pit tent imported with balls, in the toy provision of chapter 95, HTSUS.

NAFTA Eligibility

The subject tents undergo processing operations in Mexico, which is a country provided for under the North American Free Trade Agreement (NAFTA). General Note 12, HTSUSA, incorporates Article 401 of the NAFTA into the HTSUSA. Note 12(a) provides, in pertinent part:

(ii) Goods that originate in the territory of a NAFTA party under subdivision (b) of this note and that qualify to be marked as goods of Mexico under the terms of the marking rules... and are entered under a subheading for which a rate of duty appears in the "Special" subcolumn followed by the symbol "MX" in parentheses, are eligible for such duty rate... . [Emphasis added]

Accordingly, the tents at issue will be eligible for the "Special" "MX" rate of duty provided they are NAFTA "originating" goods under General Note 12(b), HTSUSA, and they qualify to be marked as a good of Mexico. Note 12(b) provides, in pertinent part:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party", only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico, and/or the United States exclusively from originating materials; or

The subject tents qualify for NAFTA treatment only if the provisions of General Note 12(b)(ii)(A) are met, that is, if the merchandise is transformed in the territory of Mexico so that the non-originating materials (the fabric formed in Korea and Taiwan) undergo a change in tariff classification as described in subdivision (t).

For the tents, subdivision (t), Chapter 63, rule 4, states that:

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.

When the fabrics for the subject tents leave Korea and Taiwan, they are classifiable as woven fabrics of synthetic filament yarn in heading 5407. As chapter 54 is excepted in rule 4, cited above, the non-originating materials from Korea and Taiwan do not undergo the requisite change in tariff classification. Accordingly, the subject tents are not eligible for the NAFTA preference.

Country of origin

On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. 3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.

Paragraph (c)(1) states that "The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced." As the subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.

Paragraph (c)(2) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign material incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section:"

Paragraph (e) states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section":

6301-6306 The country of origin of a good classifiable under heading
6301 through 6306 is the country, territory, or insular possession in which the fabric comprising the good was formed by a fabric-making process.

The subject tents are classified in heading 6306, HTSUS. As the fabric-making process for the subject tents does not occur in a single country, the tariff shift rule is not applicable.

Paragraph (c)(3) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) or (2) of this section":

(i) If the good was knit to shape, the country of origin of the good is the single country, territory, or insular possession in which the good was knit; or

(ii) Except for goods of heading 5609, 5807, 5811, 6213, 6214, 6301 through 6306, and 6308, and subheadings 6209.20.5040, 6307.10, 6307.90, and 9404.90, if the good was not knit to shape and the good was wholly assembled in a single country, territory, or insular possession, the country of origin of the good is the country, territory, or insular possession in which the good was wholly assembled.

As the subject merchandise is not knit, and heading 6306, HTSUS, is excepted from provision (ii), Section 102.21 (c)(3) is inapplicable.

Section 102.21 (c)(4) states, "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1), (2) or (3) of this section, the country of origin of the good is the single country, territory or insular possession in which the most important assembly or manufacturing process occurred". It is the belief of this office that in the case of the subject tents the most important manufacturing process occurs at the time of the fabric making. As the fabric for the tents is formed in more than one country, and no one fabric is more important than the other, country of origin cannot be readily determined based on the fabric making process. As such, paragraph (c)(4) is not applicable.

Paragraph (c)(5) states, "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1), (2), (3) or (4) of this section, the country of origin of the good is the last country, territory or insular possession in which an important assembly or manufacturing process occurred." Accordingly, in the case of the subject tents, country of origin is conferred by the last country in which an important assembly occurred, that is, Mexico.

HOLDING:

The country of origin of the subject tents is Mexico.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 177.9(b)(1). This sections states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR 177.2.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling

See also: