CLA-2 RR:CR:TE 962129 jb
James C. McKelvey
NorthPole USA
3333 Yale Way
Freemont, CA 94538
RE: Request for reconsideration of NY C88763; classification of greenhouse tents
Dear Mr. McKelvey:
This is in response to your letter, dated August 6, 1998, requesting reconsideration of New York Ruling Letter (NY) C88763, dated June 24, 1998, which classified certain greenhouse tents from China in heading 6306, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for, among other things, tents. Specification sheets and a swatch of covering fabric were submitted to this office for examination. Additionally, a supplemental letter, dated June 1, 1999, and accompanying sample, were submitted for further review.
FACTS:
The submitted merchandise consists of a tent-like greenhouse constructed with a metal tubular frame and a covering of fabric which is produced by weaving polyethylene strip (measuring approximately two millimeters in width) and coating both sides with a clear coating, covering or lamination of polyethylene. The covering for the tent greenhouse is sewn from panels of the coated fabric and features a roll back front door, a roll down back window, and no floor. This fabric covering is attached to the frame by means of hook and loop closures. The tent greenhouses are available in four sizes measuring at their base either 6' X 10', 9' X 10', 10' X 12', or 10' X 15'. The metal frame is assembled by use of plastic joints and comes equipped with metal fittings which facilitate the attachment of shelves to the frame. You indicate that shelves can be purchased separately by the consumer. The structure is secured to the ground by several 15 inch stakes. This merchandise is packed in a specially designed textile carrying bag.
In NY C88763 this merchandise was classified in heading 6306, HTSUS, in the provision for tents. It is your opinion that the classification of this merchandise as “tents” is incorrect and that the appropriate classification for this merchandise is in heading 9406, HTSUS, in the
provision for prefabricated buildings. In the alternative, should Customs determine that the merchandise is not classifiable in heading 9406, HTSUS, you state that the merchandise should be classified in chapter 39, HTSUS, as an article of plastics.
ISSUE:
Whether the subject merchandise is properly classified in heading 6306, HTSUS, which provides for, among other things, tents, or heading 9406, HTSUS, which provides for, among other things, prefabricated buildings, or heading 3926, HTSUS, which provides for, among other things, articles of plastics?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
Fabric Construction
Before determining the appropriate heading for this merchandise, a decision must be made with respect to the composition of the fabric covering. It is your opinion that this merchandise is made with sheeting material which has been embedded or completely covered or coated on both sides with clear polyethylene plastic. Furthermore, you state that as this clear coating is visible to the naked eye, by operation of Note 2(a)(3) to chapter 59, HTSUS, the fabric for this merchandise should be considered plastic sheeting and thus, classifiable as a plastic article in heading 3926, HTSUS.
Chapter 59, HTSUS, provides for impregnated, coated, covered or laminated textile fabrics. Chapter Note 2(a) to heading 5903, HTSUS, states, in pertinent part:
Heading 5903 applies to:
Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;
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(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);
As was stated in Headquarters Ruling Letter (HQ) 950542, dated March 2, 1992, addressing whether a plastic-coated fabric was “coated” for purposes of heading 5903:
The sole criterion upon which Customs is to determine whether fabric is coated for purposes of classification under heading 3921, HTSUSA, is clear and unambiguous: fabric is coated and is classifiable in Chapter 39 if the plastic coating is visible to the naked eye. This standard does not allow the examiner to take the “effects” of plastic into account. Plastic coating will often lend a sheen to fabric, result in a change of color, or increase a fabric’s stiffness; these are factors which, while indicative of the presence of plastic, may not be taken into account in determining whether the plastic itself is visible to the naked eye.
Upon close examination of the originally submitted fabric, we do not believe that the coating which has been applied to both sides of the fabric results in a transformation from fabric to plastic. Although the plastic coating is “clear” this does not mean that the coating is in essence, not visible to the naked eye. The underlying fabric, which is woven from polyethylene strip and meets the dimensional requirements to be considered a textile strip, is a flat fabric. Because the nature of the strip is “flat”, when the fabric is woven the interlacings do not cause a great deal of displacement. As a result, when the fabric is coated the coating material is evenly distributed and any excess coating does not accumulate in the interstices. Consequently, we find that the plastic coating is visible to the naked eye only on one side of this product. With respect to the second sample which was submitted, and which you state has been imbedded with 190 grams per square meter of polyethylene, and “specially formulated to provide a smooth, shiny surface to the polyethylene”, we are similarly not convinced that this fabric is coated. As stated above, the standard applied by Customs to determine whether fabric is “coated” does not take into account factors to which you make reference, as for example the “feel” or “sheen” of the fabric. In the case of the subject samples the flat weave of the fabric is discernable and its character is unaffected by the presence of any plastic coating on at least one side of the fabric. As such, the fabric from which this greenhouse is manufactured remains a textile fabric. As we have already determined that the fabric is a textile fabric, there is no need to discuss classification in heading 3926, HTSUS. See also, HQ 954621, dated December 20, 1993, wherein a gazebo was classified as a tent composed of a textile fabric based on the fact that although both sides of the fabric were claimed to be coated, only one side of the fabric had a clear plastic coating which was visible to the naked eye. As such, the fabric was determined to be a textile fabric of chapter 59, HTSUS.
Requisites of heading 9406, HTSUS- Prefabricated Buildings
In your opinion the subject merchandise is properly classified in heading 9406, HTSUS, as a prefabricated building. In support of this claim you make reference to:
1. the broad nature of structures covered by heading 9406;
2. the EN to heading 9406, HTSUS, specifically mention “greenhouses” in the exemplars;
3. heading 9406, HTSUS, allows buildings to be presented unassembled, as is the case with the subject merchandise.
Heading 9406, HTSUS, provides for prefabricated buildings. Note 4 to chapter 94, HTSUS, states:
For the purposes of heading 9406, the expression “prefabricated buildings” means buildings which are finished in the factory or put up as elements, entered together, to be assembled on site, such as housing or worksite accommodation, offices, schools, shops, sheds, garages or similar buildings.
The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 9406, HTSUS, state:
This heading covers prefabricated buildings, also known as “industrialised buildings”, of all materials:
These buildings, which can be designed for a variety of uses, such as housing, worksite accommodation, offices, schools, shops, sheds, garages and greenhouses, are generally presented in the form of :
- complete buildings, fully assembled, ready for use;
- complete buildings, unassembled;
- incomplete buildings, whether or not assembled, having the essential character of prefabricated buildings.
Although heading 9406, HTSUS, is a broad eo nomine provision encompassing a variety of prefabricated structures, the terms of the heading and accompanying EN do stipulate certain criteria which must be satisfied to fit within the parameters of the term “prefabricated building”. One of these critical factors is that the unassembled building display the core features of structures built in a factory. Furthermore, Customs has interpreted the term “prefabricated buildings” to mean:
1. buildings of a permanent nature, that is, not easily disassembled without damage;
2. buildings which are made of materials which will provide a permanent and long lasting service;
3. buildings which show the general characteristics of the exemplars listed in chapter 96, note 4.
Although different types of structures, such as greenhouses or sheds, are specifically named in the exemplars of the EN to heading 9406, HTSUS, it would be erroneous to conclude that all forms of those types of structures are classifiable in that heading. The meaning of “prefabricated building”, in whatever form presented, must be viewed in totality, that is, as defined by the terms of the headings, EN, and Customs interpretative rulings. See, e.g., HQ 960150, dated June 26, 1997, which found that similar merchandise was not classified as a prefabricated building.
The subject merchandise features a metal tubing framework which is covered with a translucent plastic textile fabric, hook and loop tabs used to secure the plastic textile cover to the metal tubing, ground stakes to secure the enclosure to the ground, guy ropes to anchor and protect the enclosure from wind shear and a specially designed textile carrying bag in which the enclosure is packed. The features inherent to this merchandise neither comply with the requisite characteristics of permanency as intended by the tariff for prefabricated buildings, nor fit the ambit of the concept in the common or commercial meaning. As such, the subject merchandise cannot be classified as a prefabricated building.
Tents
Heading 6306, HTSUS, provides for, among other things, tents. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) constitute the official interpretation of the nomenclature at the international level. While not legally binding, they represent the considered views of classification experts of the Harmonized System Committee. It has been the practice of the Customs Service to follow, whenever possible, the terms of the EN's when interpreting the HTSUS. The EN for heading 6306 provide the following regarding tents:
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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.
Caravan “awnings” (sometimes known as caravan annexes) which are tent-like structures are also regarded as tents. They are generally made of man-made fibre fabrics or of fairly thick canvas. They consist of three walls and a roof and are designed to augment the living space provided by a caravan.
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In comparing tents to shelters Customs has made reference to different lexicographic sources for the common definition of “shelter”, as for example: 1.a. Something providing cover or protection, as from the weather. b. A refuge: haven. 2. The state of being protected or covered. Webster's II New Riverside University Dictionary, 1074 (1984). Similar references have been made for the common definition of “tents”, as for example: 1. A collapsible shelter of fabric (as nylon or canvas) stretched and sustained by poles and used for camping outdoors or as a temporary building. Webster's II New Riverside University Dictionary, 1216 (1991). Through a long line of rulings issued on tents, Customs has established the precedent that in order to provide “shelter”, a tent need not be:
1. an enclosed structure (as for example, reference made to "marquees" in the EN to heading 6306, which are defined as “...large open sided tent[s], used chiefly for outdoor entertainment”, Webster's II New Riverside University Dictionary, 728, (1984), and the EN reference to “caravan awnings”, which are described as having only three sides (walls) and designed to increase the living space provided by a caravan); or
2. be able to provide protection against extremes in temperature (as for example, Customs rulings classifying sun and wind shelters as tents. See also Headquarter Ruling Letter (HQ) 951774, dated May 28, 1992, classifying a sun/windscreen shelter in heading 6306; HQ 953684, dated April 26, 1993, classifying a cabana in heading 6306; and HQ 951814, dated September 8, 1992, classifying a tent like structure for protection from wind and sun on the beach or camping, in heading 6306).
Heading 6306, HTSUS, is broad enough to encompass a variety of tents so long as they provide minimal protection from the elements. Although we understand that this merchandise is not sold as “tents”, but as “greenhouses”, Customs has to look beyond this particular importer and view the merchandise as a whole, in terms of the “class or kind of merchandise”. In that respect, we refer you to HQ 084745, dated September 15, 1989, HQ 088644, dated June 13, 1991, and HQ 085269, dated April 13, 1990, which classified various play tents as “tents” based on the fact that the tents provided some shelter from the elements. Although this merchandise will primarily be used to protect plants, the tariff does not restrict or qualify the nature of the
subject which is to be protected from the elements; all that is required is that the structure itself have the capacity to provide minimum protection from the elements. Based on the foregoing, we conclude that the proper classification for the subject merchandise is under subheading 6306.22.9030, HTSUSA.
HOLDING:
Accordingly, the subject merchandise was correctly classified in NY C88763 as a tent.
The subject merchandise is classifiable in subheading 6306.22.9030, HTSUSA, which provides for tents: of synthetic fibers: other: other. The applicable general column one rate of duty is 9.4 percent ad valorem and the quota category is 669.
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 agreements which are subject to frequent negotiations and
changes, we suggest that your client 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 the 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, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division