CLA-2 CO:R:C:G 086548 HP
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-
ings. * * * ;
(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