OT:RR:CTF:FTM H313169 TSM
Center Director
CEE – Base Metals
U.S. Customs & Border Protection
Attn: Mariann Seymour, Senior Import Specialist
Re: Application for Further Review of Protest No. 2704-20-111077; Tariff Classification of certain Canopy Tents
Dear Center Director:
The following is our decision with respect to the Application for Further Review (“AFR”) of Protest No. 2704-20-111077, timely filed by Newhope Law, PC on February 5, 2020, on behalf of their client, Eurmax Canopy, Inc. (hereinafter “Protestant”), regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of certain canopy tents.
FACTS:
At issue in Protest No. 2704-20-111077 are 10’ x 10’ canopy tents that include a 500D polyester canopy and a collapsible accordion style steel frame. The canopies do not have sidewalls or flaps and are not constructed for protection against the elements. They are designed, manufactured and marketed for outdoor use and provide shade at events such as picnics and sporting events.
The subject merchandise covers forty-four entries, entered between June 6, 2019 and November 20, 2019, and liquidated between December 9, 2019 and January 17, 2020. In its protest, dated February 5, 2020, Protestant argued that the canopy tents at issue are awnings of heading 6306, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods.” In support of this argument, Protestant stated that the canopy tents are made of a “real awning material” found on commercial storefront awnings, and that they are not similar to thin umbrellas or a sails. Protestant also argued that the primary cost of making the canopy tents is the fabric top portion. An image of a canopy tent representing the canopy tents at issue was provided with the protest. The image is displayed below.
ISSUE:
Are the canopy tents at issue classified under heading 6306, HTSUS, or heading 6307, HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The Protest was timely filed, within 180 days of liquidation of the 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. 2704-20-111077 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the Protest was filed is inconsistent with Headquarters Ruling Letter (“HQ”) 088335, dated January 30, 1991.
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The 2019 HTSUS provisions under consideration are as follows:
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods
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6307 Other made up articles, including dress patterns
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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…
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In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 63.06 states in relevant part:
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(3) Awnings, sunblinds (for shops, cafés, etc.). These are designed for protection against
the sun; they are generally made of strong plain or striped canvas, and may be mounted on roller or folding mechanisms. They remain classified in this heading even when provided with frames, as is sometimes the case with sunblinds.
(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 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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The EN to heading 63.07 states in relevant part:
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This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
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In its submission, Protestant argues that the canopy tents at issue are classified under heading 6306, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods.” Protestant claims that the subject canopy tents are awnings. We note that because the term “awning” is not defined by the HTSUS or the relevant notes, we must consult dictionaries to ascertain its meaning. The Merriam-Webster Dictionary defines “awning” as “a rooflike cover extending over or in front of a place (as over the deck or in front of a door or window) as a shelter.” The Cambridge Dictionary defines “awning” as “a cloth or plastic cover fastened to a building or structure and supported by a frame that is used to protect someone or something from the sun or rain.” Dictionary.com defines “awning” as “a rooflike shelter of canvas or other material extending over a doorway, from the top of a window, over a deck, etc., in order to provide protection, as from the sun.” The above dictionary definitions show that “awnings” are covers extending over or in front of a place, such as a doorway, window, or deck. The referenced definitions are also consistent with the EN to heading 63.06, which provides in relevant part that awnings are “[intended] for shops, cafes, etc.” The EN to heading 63.06 also provides for “caravan awnings (sometimes known as caravan annexes),” which “consist of three walls and a roof and are designed to augment the living space provided by a caravan.” Upon review of the description and images of the canopy tents at issue, we find that they are freestanding structures that are not designed to extend over or in front of any place, such as a shop, café, or caravan. In addition, they do not have any walls that would create an enclosure required for caravan awnings. Accordingly, we find that the canopy tents at issue are not “awnings” of heading 6306, HTSUS. In this regard, we further note that HQ 088335, dated January 30, 1991, referenced by the Protestant, concerned the tariff classification of awnings. Consistent with the foregoing analysis, we do not find this ruling to be authoritative with regard to the tariff classification of the subject canopy tents.
Heading 6306, HTSUS, also provides for “tents.” In this regard, the EN to heading 63.06 provides in relevant part that “Tents are shelters made of lightweight to fairly heavy fabrics of man made fibres, cotton or blended textile materials… They usually have a single or double roof and sides or walls (single or double), which permit the formation of an enclosure. … 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 Target Stores v. United States, 36 Ct. Int’l Trade 483 (U.S. 2012), the Court of International Trade (“CIT”) held that the subject merchandise fell outside the scope of the term “tents,” under heading 6306, HTSUS, because it 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 used for protection against the elements. The Target court concurred with Ero’s analysis by stating: “that court 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.” 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.”
Upon review, we find that the canopy tents at issue differ from tents of heading 6306, HTSUS, in that they do not have any walls, which would permit the formations of an enclosure, or guy wires, which would be driven into the ground for support or stability. In addition, the subject canopy tents do not provides protection from hail, sleet, or snow, which is necessary to rise to the level of protection required by the Target court. Accordingly, we conclude that the canopy tents under consideration are also not classified as “tents” of heading 6306, HTSUS, pursuant to GRI 1. Rather, they 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 be 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 tents at issue are constructed of polyester canopies and collapsible accordion style steel frames. 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), aff’d, 119 F.3d 969 (Fed. Cir. 1997). As such, two HTSUS headings are under consideration. The subject tents may be classified on the basis of the polyester canopies, in heading 6307, HTSUS, as a “made up article.” Or, they may be classified on the basis of the steel frames, under Chapter 73, HTSUS, which covers articles of iron or steel. The subject canopy tents are temporary, pop-up, outdoor coverings, designed and manufactured primarily to provide temporary shade and minimal cover for users. The steel frames cannot serve this purpose alone; rather, their role is to provide support for the polyester canopies. The essential character of the canopy tents is thus in their fabric component. The shelters in their condition as imported are considered “made-up” pursuant to Note 7(b) to Section XI. It follows then, that they are classified as “Other made up articles,” classifiable in heading 6307, HTSUS. See HQ H250830, dated February 22, 2015 (classifying a polyester, waterproof canopy cover with one single detachable textile wall and powder coated steel frame under heading 6307, HTSUS). Based on the foregoing, we conclude that the canopy tents at issue are classified in heading 6307, HTSUS, and subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
HOLDING:
By application of GRI 3(b), we find that the canopy tents at issue are classified under heading 6307, HTSUS, and specifically under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2019 column one, general rate of duty is 7%.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division