CLA-2 OT:RR:CTF:TCM H242603 ERB
Mr. Richard Haslacher
Lofty Shelters
444 Lassen Street #3
Los Altos, CA 94022
Mr. Lee B. Cargill
ENEL Company
1330 Orange Avenue, Suite 300
Coronado, CA 92118
Mr. Sean Cheatham
Shark Enterprises
1008 E. Main Street
Norman, OK 73071
RE: Revocation NY F83566; Revocation of NY H80029; Revocation of NY 818424; Tariff Classification of truck tents
Dear Sirs:
This letter is in reference to New York Ruling Letter (NY) NY F83566, issued to Lofty Shelters on March 27, 2000, NY H80029, issued to ENEL Company on April 26, 2001, and NY 818424, issued to Shark Enterprises on February 21, 1996. Each regarded a truck tent and U.S. Customs and Border Protection’s (CBP) classification of the merchandise in subheading 8708.29.5060, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Parts and accessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other…Other. We have reviewed these three rulings and found them to be in error. For the reasons set forth below, we hereby revoke NY F83566, NY H80029, and NY 818424.
Pursuant to Section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by Section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, Stat. 2057), this notice advises interested parties that CBP is revoking three ruling letters concerning the classification of truck tents, under the HTSUS. Similarly, CBP is revoking any treatment previously accorded by it to substantially identical transactions. Notice of the proposed revocation was published on February 25, 2015, Volume 49, Number 8, of the Customs Bulletin. No comments were received in response to the proposed notice.
FACTS:
In NY F83566 CBP stated the following:
You submitted fabric samples and brochures depicting various styles of a Fiberglass and Cloth Carrier for the Roof of a Car [sic]. This item opens up to provide a place to sleep above the ground. You state that you refer to it as a tent for marketed reasons but that it is not designed for use on the ground but rather to increase the functionality of a car or truck. The products are designed to be used above the roof of a car. The Maggiolina, Columbus, and Over Camp models are designed for storage of camping equipment when in transit. The top must remain closed while I motion. There is a seal between the two fiberglass shells that keep water and dirt from entering. When the vehicle is parked a person can open the Maggiolina or Columbus, take out the ladder and camping gear and use it as a protected place to sleep.
In NY H80029 CBP stated the following:
You submitted photographs of the “Adventure Truck Tent”, that is made of Nylon. The collapsible tent poles are made of aluminum. You state that the tent, when not in use, fits in a small bag about 22 inches long and weighs about 11 lbs. The primary use of the tent is for use in the bed of a pick up truck.
In NY 818424 CBP stated the following:
The item is a plastic “tent” which is used to cover the bed of a pickup truck. It acts as a cover which affords a protected sleeping space in the truck bed. It cannot be used as a ground tent.
In each ruling CBP classified the subject merchandise under subheading 8708.29.5060, HTSUS, which provides for, “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other…Other.”
ISSUE:
Whether truck tents are properly classified in heading 8708, HTSUS, which provides for “Parts and accessories of the motor vehicles…”, or under heading 6306, HTSUS, which provides for “Tents”.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 provisions under consideration are as follows:
8708 Parts and accessories of the motor vehicles of heading 8701 to 8705:
***
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods (con.):
Additional U.S. Rule of Interpretation 1(c) states, in relevant part:
In the absence of special language or context which otherwise requires –
(c ) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such a part or accessory;
Note 3 to Section XVII reads, in relevant part:
3. References in Chapters 86 to 88 to “parts” or “accessories” do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part of accessory.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding for dispositive, the ENS provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN 87.08 states:
This heading covers parts and accessories of the motor vehicles of heading 87.01 to 87.05, provided the parts and accessories fulfill both the following conditions:
They must be identifiable as being suitable for use solely or principally with the above-mentioned vehicles; and
They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note).
Parts and accessories of this heading include:
(A) Assembled motor vehicle chassis-frames (whether or not fitted with wheels but without engines) and parts thereof (side-members, braces, cross-members; suspension mountings; supports and brackets for the coachwork, engine, running-boards, battery or fuel tanks, etc.)
EN (III)(C)(4) to Section XVII, HTSUS, states, in relevant part:
(C ) Parts and accessories covered more specifically elsewhere in the Nomenclature.
Parts and accessories, even if identifiable as for the articles of this Section, are excluded if they are covered mores specifically by another heading elsewhere in the Nomenclature…
The EN for heading 6306 states, in relevant part:
(4) 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 asides 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.
In NY F83566, NY H80029, and NY 818424 CBP classified the subject merchandise in heading 8708, HTSUS, as “Parts…of motor vehicles”. However, pursuant to Additional U.S. Rule of Interpretation 1(c), and illustrated by EN (III) (C)(4) to Section XVII, if the truck tents are classifiable in heading 6306, HTSUS, then heading 8708, HTSUS, shall not prevail.
Thus, CBP’s analysis here begins with heading 6306, HTSUS. The U.S. Court of International Trade (CIT) discussed the scope of this heading in Target Stores v. United States, No. 06-00444 (Ct. Int’l Trade Mar. 22, 2012). In analyzing subject gazebos as tents of heading 6306, HTSUS, or structures of heading 7308, HTSUS, the CIT referenced Ero Industries, Inc. v. United States, 24 CIT 1175, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000), which cited the aforementioned ENs, as well as other lexicographic definitions of the term tent. Ultimately the CIT found that tents are a collapsible shelter of canvas or other material, stretched and sustained by poles, usually 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. Target Stores v. United States, supra, at page 10, citing 24 CIT 1175, at 1185, 118 F. Supp. 2d at 1364.
In the instant case, the subject truck tents were designed and marketed as tents, to protect the users from the elements, and to provide temporary reprieve when the user wants outdoor shelter in connection with his or her vehicle. It meets the CIT’s definition noted above. The three tents at issue in their condition as imported and once assembled have walls which permit the formation of an enclosure See EN 63.06 (4). That the subject tents are used on top of a truck or vehicle does not exclude it from heading 6306, HTSUS. This conclusion is consistent with prior CBP rulings. See NY N238613, dated March 5, 2013 (classifying a truck-bed tent from Canada as a tent in subheading 6306.22.9030, HTSUS); NY N064199, dated June 11, 2009 (classifying a truck tent from China as a tent under subheading 6306.22.9030, HTSUS), and NY A86554, dated August 16, 1996 (classifying a tent for an automotive vehicle from Taiwan as a tent under subheading 6306.22.9030, HTSUS).
If arguendo, the subject merchandise is not excluded from heading 8708, HTSUS, by operation of Additional U.S. Rule of Interpretation 1(c), the subject tents are still not “parts” of motor vehicles. The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, (Bauerhin) 110 F.3d 774. The first test, articulated in United States v. Willoughby Camera Stores, (Willoughby Camera) 21 C.C.P.A. 322 (1933), requires a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby Camera, 21 C.C.P.A. 322 at 324). The second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), states that “an imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Id.
The subject tents are not designed or marketed as an integral, constituent or component part of the vehicle on which it is to be used. The tents are merely designed so as to take advantage of the shape of the vehicle, such that the combination of the tent and the vehicle creates a tented shelter. Furthermore, the truck tents at issue do have a separate and distinct commercial identity. They are not akin to the exemplars listed in the EN 87.08 (A), such as side-members, braces, cross-members, suspension mountings, supports and brackets for the coachwork, engine, running-boards, battery or fuel tanks, which are all affixed into or attached onto the inner workings of a motor vehicle.
Neither are they “accessories” of motor vehicles. The U.S. Court of Appeals for the Federal Circuit (CAFC) addressed the scope of accessories in Rollerblade, Inc. v. United States, 282 F.3d 1349 (Fed. Cir. 2002). Citing E.M. Chems v. United States, 920 F.2d 910 (Fed. Cir. 1990). There, the CAFC noted that “an “accessory” must bear a direct relationship to the primary article that it accessorizes.” 282 F.3d at 1352. The truck tents at issue here do not directly affect the car or truck’s operation. As above in the parts analysis, the tents merely take advantage of the truck’s flat-bed to sit upon, it does not contribute to the safe and efficient operation of the truck, it is not necessary to enhance the truck or make it work. In fact, the truck must be parked or stopped, unmoving and not performing its essential function at a motor vehicle in order for the tents to work. It doesn’t act directly on the motor vehicle at all, the two articles (car and tent) operate independently of one another completely.
The tents are thus not “parts” nor are they “accessories” as it is understood by the HTSUS. The tents do not pass muster under EN (III)(C)(4) to Section XVII, HTSUS, which provides that parts and accessories are excluded from this heading if they are covered more specifically elsewhere in the nomenclature. This provision, read in concert with Additional U.S. Rule of Interpretation 1 (c), is clear that an eo nominee provision in the HSTUS takes precedence over a parts or accessories provision. In sum, the subject truck tents fits within the provision for “tents” of heading 6306, HTSUS.
HOLDING:
Under the authority of GRI 1, and additional U.S. Rule of Interpretation 1(c), the subject truck tents are classified in heading 6306, HTSUS. They are specifically provided for in subheading 6306.22.90, HTSUS, which provides for “Tents: Of synthetic fibers: Other.” The column one general rate of duty is 8.8% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. .
EFFECT ON OTHER RULINGS:
NY F83566, dated March 27, 2000, NY H80029, dated April 26, 2001, and NY 818242, dated February 21, 1996 are hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division