CLA-2 CO:R:C:T 089449 HP
Ms. Kathleen M. Haage
Area Director
U.S. Customs Service
Airport International Plaza
Newark International Airport
Newark, NJ 07114
RE: Request for Internal Advice Number 25/91. Screen house.
Cabin tent. made up; plastics; textiles; Gore-Tex ; essential
character; GRI 1.
Dear Ms. Haage:
This is in reply to your memorandum of April 18, 1991,
requesting internal advice on the tariff classification of a
screen/cabin tent imported from Taiwan. Please reference your
file CLA-1-01-N:TB CF.
FACTS:
The merchandise at issue consists of 15' x 9' two-room
screen/cabin tent, Style 4663, Nelson/Weather-Rite, Inc. One
room forms a 9' x 6' screen house which provides an insect-free
area for eating, playing, and relaxing. The 9' x 9' second, or
cabin room constitutes the sleeping and private dressing area.
The roof of the structure and the walls of the cabin area are
made of woven polyethylene strips covered on both sides with a
visible plastics coating. The sides of the screen house portion
and three large windows of the cabin area are made of polyethyl
ene screening in the form of a textile mesh. The windows have a
closable plastic covering. The structure is supported by means
of a zinc-coated steel framework and poles with chain cords.
There is a floor in the cabin area, made of the same material as
the roof. All of the components, along with plastic stakes, are
packed inside a storage/carrying bag.
It is the position of the internal advice applicant, per
counsel Barnes, Richardson & Colburn, that the walls, roof, floor
and room divider impart the essential character of the article,
and that the article should be classified as an article of
plastics.
ISSUE:
Whether the screen/cabin tent is an article of textiles or
plastics under the HTSUSA?
LAW AND ANALYSIS:
Heading 6306, HTSUSA, provides for tents. 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., marquees 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.
Note 1 to Chapter 63, HTSUSA, states that heading 6306
applies only to made up articles of textile fabrics. The screen
house/cabin tent consists of three components. First, woven
polyethylene strips covered on both sides with a visible plastics
coating and making up the roof, cabin floor, and cabin walls.
This plastic/textile combination is classifiable in Chapter 39,
HTSUSA, since (1) the textile fabric is entirely coated on both
sides with plastics, and (2) that plastics coating is visible to
the naked eye. See Note 1(h) to Section XI, HTSUSA, and Note 2
to Chapter 59, HTSUSA. The other components of the screen
house/cabin tent are the polyethylene screening that is con
sidered a textile, and the steel poles, which are classified
under, as indicated above, the provision for tents in Chapter 63,
HTSUSA.
The General Rules of Interpretation (GRIs) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part, that "... classification shall be
determined according to the terms of the headings and any rela
tive section or chapter notes ..." Goods which cannot be classi
fied in accordance with GRI 1 are to be classified in accordance
with subsequent GRIs, taken in order. Note 1(h) to Section XI,
HTSUSA, excludes from classification therein articles of Chapter
39. Note 2(l) to Chapter 39, HTSUSA, excludes from classifica
tion therein goods of Section XI. Counsel has implied that, in
order to ascertain whether the instant merchandise is an "article
of Chapter 39" or a "good of Section XI," one must determine the
essential character (by means of GRI 3) of the tent. Counsel has
cited HRL 083789 of March 31, 1988, in support of this argument.
HRL 083789 held neither the side screening nor the nonwoven
plastic-coated roof imparted the essential character, under GRI
3(b), of a screen house. Accord HRL 084819 of October 5, 1989
(adopting essential character analysis of HRL 083789). These
rulings, however, were incorrect to the extent that they specifi
cally introduced GRI 3 at the legal note level as the basis for
determining whether the Chapter 63, Note 1 limitation for made-up
articles, "of any textile fabric," (and the Note 1(h) to Section
XI exclusion of articles of Chapter 39, HTSUSA), included the
subject screen houses. Subsequent GRIs cannot be used to modify
the intended coverage of a Section or Chapter Note. It is only
after merchandise is classified in accordance with these Notes
that the remaining GRIs are consulted. See HRL 085550 of
December 8, 1989 (modifying HRL 083789); see also the Explanatory
Note to Chapter 39, HTSUSA (stating that classification of
textile/plastics combinations is essentially governed by Note
1(h) to Section XI, HTSUSA).
It has been suggested that Customs recent Federal Register
publication, Classification of Garments Composed in Part of
Linings or Interlinings of Specialized Fabrics or Nonwoven
Insulating Layers, 56 Fed. Reg. 46372 (September 12, 1991)
(hereinafter "Gore-Tex Notice") requires application of GRI 3 to
determine whether the instant article is a "good of Section XI,
HTSUSA. This is incorrect. The Gore-Tex Notice held that
garments composed in part of specialized fabrics or nonwovens
should be classified on the basis of that component of the
garment which imparted the essential character under GRI 3(b).
Application of GRI 3, however, was mandated by relevant legal
Notes to Section XI, HTSUSA. These Notes, which apply to either
textile goods of Chapters 50 to 55 (or headings 5809 or 5902) or
articles of two or more textile materials (the tent is composed
of only one textile material), are not applicable to the tent at
issue.
As a result of the above-stated rationale, we are left with
an amalgam of plastic and textile which is simultaneously exclud
ed from the respective plastic (if an article "of textiles") and
textile (if an article "of plastic") divisions of the tariff
schedule. In addition, neither the HTSUSA nor the Explanatory
Notes aid us in determining what is meant by "of textiles." In
our previous screen house rulings, we held that if the textile
portion imparted a significant characteristic to the tent, the
tent would consequently be deemed a textile article. This
finding was based in part upon General Note 7(e) to the HTSUSA,
which defined, inter alia, "in part of" or "containing" as
containing "a significant quantity of the named material."
Emphasis added. Since an article "of textiles" clearly contains
at least as much textile as an article "in part of" textiles, and
less than an article "wholly of" textiles, a textile portion
which imparts a significant characteristic must therefore be of a
significant quantity.
We are now modifying this rationale. Since the term "of",
as it is used in the legal notes, is not specifically defined in
the tariff schedule or its accompanying Explanatory Notes, it is
our opinion that reference to the subsequent GRIs is appropriate
to determine the intent of the drafters. Therefore, in an
analysis of whether an article is "of" a particular material,
that material which imparts upon the good its essential character
is the material of which the article is constructed.
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 charac
ter, insofar as this criterion is
applicable.
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. Explanatory Note (IX) to GRI 3 pro
vides:
For the purposes of [GRI 3(b)], composite
goods made up of different components shall
be taken to mean not only those in which the
components are attached to each other to form
a practically inseparable whole but also
those with separable components, provided
these components are adapted to one another
and are mutually complementary and that
together they form a whole which would not
normally be offered for sale in separate
parts.
[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.
According to Counsel's letter of March 12, 1991, the textile
portion of the tent represents 9% of the value of the entire
tent; by contrast, the plastics/textile combination portion
represents 26% of the tent's value. The textile portion weighs
0.50 kilogram, while the plastics/textile combination weighs 12.7
times more, at 6.35 kilograms. The textile portion covers
17,807.08" squared, while the plastics/textile combination covers
2.65 times more area, at 47,142.87" squared. The figures for the
steel poles (the poles are not taken into account, per the EN to
heading 6306) are not given.
Although the figures submitted by Counsel show that a
substantial proportion of the tent's value, weight and area are
taken up by the plastics coated woven polyethylene strips, a
meaningful amount of the tent is still made from textiles. In
addition, the textile portion of the tent (the screening) extends
the living area, keeps out insects, provides some protection
against the elements, and allows maximum air circulation. The
plastics/textile portion provides additional protection from the
weather.
An essential character analysis is not intended to be a mere
"numbers game", but, as we stated above, must focus upon "what an
article is; that which is indispensable to the structure or
condition of an article." Both the plastic and textile portions
are extremely important in the use of the tent. Both serve to
distinguish what the article is: a primarily plastic cabin tent
combined with a primarily textile screen house. It is our
opinion, therefore, that neither the textile nor the plastic
impart the essential character of this article.
GRI 3(c) states that when "[g]oods cannot be classified in
accordance with the above rules[, such goods] shall be classified
under the heading which occurs last in numerical order among
those which equally merit consideration." As the headings of
Section XI, HTSUSA, appear after those of Chapter 39, HTSUSA,
classification within the former is appropriate.
Subheading 6306.22, HTSUSA, provides for tents of synthetic
fibers. Subheading 6306.29, HTSUSA, provides for tents of other
textile materials. The latter subheading does not merit consid
eration, because the plastics/textile combination is not consid
ered a textile for classification purposes under the HTSUSA.
Classification under subheading 6306.22 is therefore required.
For statistical reporting purposes, subheading 6306.22.9010,
HTSUSA, provides for screen houses of synthetic fibers. The
subject tent is a screen house combined with a cabin tent, and is
therefore not classifiable as a mere screen house.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 6306.22.9030, HTSUSA, textile catego
ry 669, as tarpaulins, awnings and sunblinds; tents; sails for
boats, sailboards or landcraft; camping goods, tents, of synthet
ic fibers, other, other. The applicable rate of duty is 10
percent ad valorem.
The designated textile and apparel category may be subdivid
ed 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 the internal
advice applicant 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 any 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, the internal advice applicant
should contact any local Customs office prior to importing the
merchandise to determine the current status of any import re
straints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division