CLA-2 OT:RR:CTF:TCM: H256506 ERB
Consumer Products & Mass Merchandising Center
U.S. Customs and Border Protection
157 Tradeport Drive
Atlanta, GA 30354
RE: Internal Advice; Tariff classification of an Instant Screened Canopy
Attn: Eric Buchanan, Supervisory Import Specialist
Dear Mr. Buchanan:
This is in response to your forwarding an importer’s request for Internal Advice on March 17, 2014, regarding the tariff classification of an “Instant Screen Canopy” imported by Costco Wholesale Corporation (Costco). Requests for Internal Advice by a field office is governed by regulations found in 19 C.F.R. § 177.11, and requests can be made at any time, even after liquidation. Here, two shipments of the subject merchandise entered on March 11, 2013 and were liquidated on January 24, 2014. A third shipment entered on March 29, 2013 and was liquidated on February 7, 2014. The importer subsequently filed a timely protest on March 17, 2014. An Application for Further Review (AFR) of Protest Number 3001-14-100126 (CBP Form 19) was submitted but did not provide any criterion set forth in 19 C.F.R. § 174.24 which provides that further review of a protest shall be accorded a party filing an application for further review which meets the requirements of § 174.25 when the decision against which the protest was filed:
(a) 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;
(b) Is alleged to involve questions of law or fact which have not been ruling upon by the Commissioner of Customs or his designee or by the Customs courts;
(c) Involves matters previously ruled upon by the Commissioner or Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
(d) Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to § 177.11(b)(5) of his chapter.
Costco noted in box 16 on its CBP Form 19 that justification for further review under the criteria in 19 C.F.R. § 174.24 and 175.25 was provided in its submission. This offices notes that Costco’s submission has a section marked, “Application for Further Review” whereby Costco references communication with a relevant National Import Specialist on this matter. However, this communication does not nullify Costco’s responsibility to complete CBP Form 19, including justification for further review under one of the above noted criteria.
However, this office will respond to the substantive issue as a Request for Internal Advice. Specifically, the request regards the importer’s claims that the instant screen canopies are properly classified under subheading 6307.90.98, of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other made up articles.”
FACTS:
The subject merchandise is a screened canopy, called the “Instant Screened Canopy” (Model 2000004413). It consists of a 150D polyester canopy cover and six screened sides (in a hexagon shape) which extend fully from the frame to the ground, and connect to each other to form a complete enclosure. It zips to fully close on all six sides. When erected, the canopy measures 12’ x 10’. It is collapsible and fits into a carry bag.
Costco imported the subject screen house under subheading 6307.90.98, HTSUS, which provides for “Other made up articles.” The Port liquidated the goods under subheading 6306.22.90, HTSUS, which provides for “tents.”
ISSUE
Whether the subject merchandise is classified as a “tent” under heading 6306, HTSUS, or as “Other made up articles” under heading 6307, HTSUS.
LAW AND ANALYSIS
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2 through 5 may then be applied in order.
The HTSUS provisions under consideration are as follows:
6306 Tarpaulins awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:
6306.22 Tents: Of synthetic fibers
***
6307 Other made up articles, including dress patterns:
6307.90 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 63.06 (4) provides 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 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 subject merchandise is a textile stretched and sustained by poles, secured into the ground via hooks and augers. It is a temporary article and portable as evidenced by its light weight, collapsibility, and the accompanying wheeled carry bag. It has a textile roof, and six textile walls that secure closed via zippers to form a full enclosure. It is not meant to be a permanent design feature in a landscape plan for one’s property.
Costco argues that in light of two decisions issued by the U.S. Court of International Trade (CIT), Target Stores v. United States, No. 06-00444 (Ct. Int’l Trade Mar. 22, 2012) and Ero Industries, Inc. v. United States, 24 CIT 1175, 118 F. Supp. 2d 1356 (2000), tents classified in heading 6306, HTSUS, must provide protection for users against all “weather elements.” For the reasons which follow, these decisions do not provide a basis for concluding that the subject merchandise is not classifiable as a tent.
The CIT considered the scope of tents of heading 6306, HTSUS, in the context of gazebos in Target Stores v. United States, No. 06-00444 (Ct. Int’l Trade Mar. 22, 2012). There, the Court referenced Ero Industries, Inc. v. United States, 24 CIT 1175, 118 F. Supp. 2d 1356 (2000) which considered children’s toy or play tents and cited various lexicographic definitions of the term “tent.” It is normally 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 used for protection against the elements. See 24 CIT at 1185, 118 F. Supp. 2d at 1364. The Court then focused in on specific characteristics of the gazebos; namely that it did not have walls or sides which enclose the users, as described by the EN to 6306. The Court stated, “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.” Target Stores v. United States, No. 06-00444 at page 10 (Ct. Int’l Trade Mar. 22, 2012). Given this, the Target Court held that the scope of tents of heading 6306, HTSUS, should not be expanded to include gazebos, which are described as heavy, awkward to transport, composed of heavy metal or wood, are open on all four sides, and are a permanent feature used in a landscape design site plan. See Target Stores, supra, at page 8. Analogously, the Court in Ero Industries, Inc., supra, ultimately held that children’s toy tents, “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.” Id. Rather, the products were more specifically described as “toys” of chapter 95, pursuant to a GRI 3(a) analysis, because they lacked utility as a tent specifically used for camping.
The subject merchandise, Instant Screen Canopies, share almost no characteristics with gazebos or toy tents. Rather, the subject merchandise is a collapsible shelter, comprised of textile material stretched and sustained by poles, with four walls that permit the formation of an enclosure, used for outdoor activities, which satisfies both the Court’s definition of tent, as well as the EN to 63.06. The screen houses are marketed, sold, assembled, displayed, and enjoyed as a tent. It is a “tent” under a GRI 1 analysis. Hence, it cannot be described as an “other” made up article of heading 6307, HTSUS
HOLDING
By application of GRI 1, the subject instant canopies are classified in heading 6306, HTSUS. They are specifically provided for in subheading 6306.22.1010, HTSUSA, which provides for, “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other: Screenhouses.” The column one, general rate of duty is 8.8% ad valorem.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division