CLA-2 CO:R:C:T 956042 BC
Mr. Paul Fast
Sunshell Designs, Inc.
1672 West 1st Ave.
Suite 201
Vancouver, B.C. Canada V6J1G1
RE: Revocation of New York Ruling Letter (NYRL) 837034;
classification of the "Sunshell"; sun and wind shelter; beach
shelter; sun protector; tent; backpacking tent; HRL 955304
Dear Mr. Fast:
The Customs Service recently has had reason to reexamine the
classification determination in NYRL 837034, dated March 2, 1989,
issued to Sunshell Designs, Inc. After careful review, we have
decided that the classification of the "Sunshell" was incorrect.
Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as
amended by section 623 of Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act, Pub. L.
103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625),
notice of the proposed revocation of NYRL 837034 was published on
May 25, 1994, in the Customs Bulletin, Volume 28, Number 21. We
herein revoke that ruling as set forth below.
FACTS:
In NYRL 837034, Customs classified a sun and wind shelter
under subheading 6307.90.9030, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), which then provided for other
made-up articles of textile materials (subheading 6307.90.9986 in
the current tariff). In the ruling, the shelter was described as
the "Sunshell," "an open half-dome sun/windscreen shelter with
carry bag." In your request for the ruling, you described it as
a "quick set-up beach canopy." It is constructed of woven nylon
fabric fitted on shock-corded fiberglass rods. It comes with
plastic connectors, plastic pegs, and plastic cord locks. When
folded, it is 29 and 1/2 inches long. When open, it provides
shelter from the sun and wind, and can be used at the beach, in the
park, in the yard, etc. It comes with a 31 inch long zipper
carrying case made of the same nylon fabric.
ISSUE:
What is the proper classification for the subject nylon
sunshelter?
LAW AND ANALYSIS:
Recently, Customs classified a nylon sunshelter under
subheading 6306.22.9030, HTSUSA, which provides for other tents of
synthetic fibers. The sunshelter there classified was described
in Headquarters Ruling Letter (HRL) 955304 (March 11, 1994) as
follows:
[A] nylon (woven fabric) shelter that offers protection
from the wind and the sun at picnic areas and the beach.
It is dome shaped, with three sides and a floor. It is
open on one side, permitting entry and exit and allowing
a view of surroundings while inside. When set up, the
shelter measures 52 inches by 108 inches by 48 inches.
The floor is 26 square feet. When disassembled and placed
in a carrying case, it measures 4 inches by 28 inches.
It is clear that the shelter classified in HRL 955304 is
substantially similar to the shelter classified in NYRL 837034.
The classification of goods under the Harmonized Tariff
Schedule of the United States (HTSUS) is governed by the General
Rules of Interpretation (GRI). GRI 1 provides that classification
is determined in accordance with 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 rules will
be applied in sequential order. The Explanatory Notes (EN's) of
the Harmonized Commodity Description and Coding System 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. (See Treasury Decision (T.D.) 89-80, wherein Customs
stated that the EN's should always be consulted as guidance when
classifying merchandise. 23 Cust. Bull. 379 (1989), 54 Fed. Reg.
35,127 (August 23, 1989).)
The EN's for heading 6306 provide the following regarding
tents:
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.
It is clear that the scope of heading 6306 includes a wide variety
of tents which, according to the EN above, are in fact shelters.
The EN explicitly refers to shelters for beach use. Moreover,
while many tents are constructed to form an enclosure, the scope
of the heading is not limited to such tents. In HRL 955304, we
stated the following regarding this issue:
The fact that the shelters at issue are open on one side
is not controlling. The EN first sets forth that tents
are shelters. The definition of "shelter" is as follows:
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). Clearly, shelters are
not limited to closed structures. Also, one of the EN's
examples of tents covered by heading 6306, HTSUSA, is
"marquees." These are defined as follows: 1. A large
open-sided tent, used chiefly for outdoor entertainment.
Id. at 728. Thus, an open-sided shelter is considered
a tent for tariff purposes. These terms ("shelter" and
"marquees") show that tents of the heading are not
limited to completely enclosed structures. Further, in
describing the tent as an enclosure, the EN uses the non-
exclusive qualifying term "usually." This means "not in
all cases," which again indicates that tents of the
heading are not limited to the enclosed type.
There is additional precedent for the position that sun and
wind shelters are classifiable as tents. In Headquarters Ruling
Letter (HRL) 951774, dated May 28, 1992, we stated the following
regarding a sun/windscreen shelter: "In Customs view, the
sun/windscreen shelter in question is a class or kind of
merchandise similar to a tent or tent-like structure and is
classifiable in heading 6306." For similar holdings, see HRL's:
953684 (April 26, 1993), concerning a cabana; 951814 (September 8,
1992), concerning a tent-like structure for protection from wind
and sun on the beach or camping; and 089237 (May 10, 1991),
concerning a beach cabana.
The shelter at issue is designed for use at the beach. Its
purpose is to protect occupants from the wind and sun. It could
be used for this purpose at picnics or in the backyard. It is not
the kind of tent used for backpacking purposes. Such tents are
designed to be used in the sport of backpacking, where participants
hike long distances and survive against the elements by utilizing
only those supplies they carry on their backs. (See The Newman
Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648
(1976).) Backpacking tents must be designed to stand up to the
occasional severe weather (including hard and extended rain) that
backpackers face. An open-sided shelter would not fulfill that
purpose. The fact that a shelter may meet the guidelines for
backpacking tents set forth in Treasury Decision (T.D.) 86-163, 20
Cust. Bull. 468, 470 (1986), is not necessarily determinative. We
do not have sufficient information to permit us to here consider
each guideline; yet, it is clear that the shelter at issue does not
meet the first requirement under the guidelines: "It [the tent]
must be specially designed for the sport of backpacking." As
stated above, the shelter at issue was not designed for
backpacking.
Based on the foregoing, we conclude that Customs
classification of the shelter in NYRL 837034 under subheading
6307.90.9030, HTSUSA, was in error.
HOLDING:
The open-sided sunshelter at issue is classifiable under
subheading 6306.22.9030, HTSUSA, as an other tent of synthetic
fibers. The applicable duty rate is 10% ad valorem; the quota
category is 669.
Accordingly, New York Ruling Letter 837034 is hereby revoked.
In accordance with section 625, this ruling will become
effective 60 days from its date of publication in the Customs
Bulletin. Publication of rulings or decisions pursuant to section
625 does not constitute a change of practice or position in
accordance with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division