CLA-2 RR:TC:TE 959499 jb
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
Tariff Classification Appeals
Division