CLA-2 OT: RR: CTF: TCM H250830 ERB
Port Director
U.S. Customs and Border Protection
Port of San Francisco
555 Battery Street, Room 319
San Francisco, CA 94111
ATTN: Tonda Fuller, Import Specialist
RE: Application for Further Review of Protest No. 2809-13-100691; Tariff Classification of outdoor canopies
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 2809-13-100691, timely filed by counsel on November 27, 2013, on behalf of Costco Wholesale Corporation (Costco or Protestant). The AFR references two entries of eleven shipments of merchandise dated July 17, 2012 and July 21, 2012. The Protest is against U.S. Customs and Border Protection’s (CBP) classification of polyester canopies with a steel frame, also referred to as an outdoor canopy, under subheading 6306.22 under the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Tents: Of synthetic fibers: Other.” No sample was provided, but pictures were used in this AFR.
FACTS:
The subject merchandise is 150D polyester, waterproof canopy cover, with one single detachable textile wall. It has a powder coated steel frame, comprised of four legs and parts which support the canopy as a roof. It measures 10’ x 10’ and weighs approximately fifty (50) pounds. Some models contain a professional sports team logo imprinted on the exterior, for example on the detachable wall or on the top of the canopy cover. The canopy collapses to fit into the accompanying storage case with wheels. The canopies are designed, manufactured and marketed for outdoor use at events like picnics and sporting events. Costco entered seven shipments on July 17, 2012, and four shipments on July 21, 2012. CBP liquidated all entries on May 31, 2013, under heading 6306.22.90, HTSUS, which provides for “tents.”
ISSUE:
What is the classification of the subject outdoor canopies under the HTSUS?
LAW & ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The Protest was timely filed, within 180 days of liquidation for all involved entries (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.108-429, § 2103(2)(B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest No. 2809-13-100691 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the Protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, Costco argues that the Port did not consider the decision made by the U.S. Court of International Trade in Target Stores v. United States, Court No. 06-00444 (Slip Op.12-41, March 22, 2012).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS headings under consideration are the following:
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:
**
6307 Other made up articles, including dress patterns:
**
7308 Structures (excluding prefabricated buildings) of heading 9406) and pars of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel.
Note 7 to Section XI, which covers Chapter 63, HTSUS, provides in pertinent part:
For the purposes of this section, the expression “made up” means: … (b) Produced in the finished state, ready for use…without sewing or other working…; [Emphasis in original]
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and coding System, which constitutes the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August, 23 1989).
The EN 63.06, provides in relevant part:
(4) Tents are shelters made of lightweight to fairly heavy fabrics of man-made fibers, 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 wall s(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.
The CIT held in Target Stores v. United States, Court No. 06-00444 (Slip Op.12-41, March 22, 2012) that the subject merchandise fell outside the scope of the term “tents,” under heading 6306, HTSUS, because the merchandise was marketed, sold, assembled, displayed, and enjoyed as a gazebo, and not as a tent. In doing so, the CIT referred to Ero Industries, Inc. v United States, 24 CIT 1175, 118 F.Supp.2d 1356 (2000), which cited the EN to heading 63.06, as well as various lexicographic definitions of the term “tent.” A tent is a collapsible shelter of canvas or other material stretched and sustained by poles, usually used for camping outdoors (as by soldiers or vacationers); shelters supported by poles and fastened by cord to pegs driven into the ground; “shelter” as used in most definitions of “tent” refers to temporary structures for protection against the elements, 24 CIT 1175, 1185, 118 F.Supp.2d 1356, 1364 [Emphasis added]. The Target court concurred with Ero’s analysis by stating, “that court [Ero] proceeded to find that its imports, while affording some enclosure, are not shelters within most definitions of the term “tent” since the imports were neither designed nor constructed for protection against the elements”, Target Stores, supra, at page 10. Further, “to the extent those weather “elements” do not include sunshine but are everything else nature has to offer, e.g. hail, rain, sleet or snow, often driven by wind, plaintiff’s gazebos offer little or no protection therefrom. Rather, their intended function is demarcation of outdoor home areas, essentially for use during moments of acceptable ambiant [sic] air temperatures and meteorological tranquility.”
Similarly, Costco’s canopies do not have cords or guy wires which are driven into the ground for support and stability. It does not have four walls, but rather one detachable wall, which does not form an enclosure around users. Though the roof is water resistant, this mere treatment does not rise to the level required by the Target court whereby the canopy provides shelter and protection from hail, rain, sleet or snow, or any other precipitation driven by the wind. This canopy could not be used for shelter or protection for military purposes, or for camping. This is a lightweight, pop-up canopy, designed to be put up and taken down with ease, for temporary or seasonal use. Accordingly, the instant merchandise is not classified as a “tent” pursuant to GRI 1.
Rather, the canopies are composite goods governed by GRI 3, which provides for, in pertinent part:
When, by application of rule 2(b), 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 be3 classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The canopy has a polyester canopy and powder coated steel frame, including legs. Pursuant to GRI 3(b), composite goods are classified by the component which gives them their essential character. See Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F.3d 969 (Fed. Cir. 1997). As such, two HTSUS headings are under consideration. The subject merchandise may be classified on the basis of the polyester canopy, in heading 6307, HTSUS, as a “made up article.” Or, the subject merchandise may be classified on the basis of the steel frame, under Chapter 73, HTSUS, which covers articles of iron or steel. The subject merchandise is a temporary, pop-up, outdoor canopy, designed, manufactured, and marketed for use at picnics and sporting events. Its primary function is to provide temporary shade and minimal cover for users in fair weather. The metal frame cannot serve this purpose alone; rather, its role in the composite good is to provide support for the textile. The essential character of the canopy is thus, the textile canopy. This item is in its condition as imported, considered “made-up,” pursuant to Note 7(b) to Section XI. It follows then, that the subject canopies are classified as “Other made up articles: Other: Other,” classifiable in heading 6307, HTSUS.
This is consistent with previous CBP rulings whereby outdoor canopies were classified according to the material of the shroud. See New York Ruling (NY) 856811, dated October 17, 1990 (classifying a dining canopy of polyethylene strips covered on both sides with a visible plastic coating under subheading 3926.90.90, HTSUS as an other article of plastic); and NY L81420, dated December 17, 2004 (classifying a dining canopy composed of clear polyethylene fabric strips under subheading 3926.90.90, HTSUS, as an other article of plastic).
HOLDING:
Pursuant to GRI 3(b), the outdoor canopies are classified in heading 6307, HTSUS. It is specifically provided for under subheading 6307.90.98, HTSUS, which provides for, “Other made up articles: Other: Other.” The column one, rate of duty, is 7 percent ad valorem.
The Protest should be GRANTED. Since the classification indicated above is a different provision from the classification under which the entry was liquidated, you are instructed to grant the Protest in full and reliquidate the entries under subheading 6307.90.98, HTSUS. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the Protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the U.S. Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division