CLA-2 CO:R:C:M 955150 MMC
Mr. Tom Staub
R.A.V. Services Inc.
147-22 Farmers Blvd.
Jamaica, New York 11434
RE: Aluminum structure for swimming pool covering system; GRI 2
(a); incomplete article; EN Rule 2 (a); essential character;
condition as imported; U.S. vs. Citroen; HRL 954785
Dear Mr. Staub:
This is in response to your letter dated September 21, 1993,
on behalf of Swim All Seasons USA, to Customs in New York,
regarding the tariff classification of an aluminum structure for
a swimming pool covering system under the Harmonized Tariff
Schedule of the United States (HTSUS). Your letter, together with
a copy of a portion of a brochure for the pool covering system, was
forwarded to this office for a response.
FACTS:
The article in question is the aluminum structure component
of a swimming pool covering system. The cover is elliptical shaped
and divided into sections or vaults. All vaults may be installed
to remain fixed in place over a pool or individual vaults may be
installed so that they are movable to open the pool area. The
movable vaults are guided and anchored at the base in tracks and
when moved, collapse into each other much like a telescope.
The pool cover consists of imported aluminum arches with U.S.
made acrylic side panels and a U.S. made polycarbonate top panel.
The side panels are transparent and can be raised, much like a
garage door, manually and simultaneously to slide under the top
panel. They may also remain down to insulate the covered area and
trap sunlight to heat the water in the pool. Because of the
movable side panels and the individually movable vaults, the
swimming pool cover is considered openable both vertically and
horizontally.
The structure's width and length vary according to the size
of the pool. It can be centered over the pool or not, depending
upon whether a "beach" area is desired. Additionally, the
structure can be attached to a wall or the front of a house.
ISSUE:
What is the tariff classification of the aluminum structure
component for a pool cover system under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1, HTSUS, states, in pertinent part, that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes; and, provided
such headings or notes do not otherwise require, according to the
remaining GRIs applied in descending order. GRI 2 (a), HTSUS,
states:
[a]ny reference in a heading to an article shall be taken to
include a reference to that article incomplete or unfinished,
provided that, as entered, the incomplete or unfinished
article has the essential character of the complete or
finished article. It shall also include a reference to that
article complete or finished (or falling to be classified as
complete or finished by virtue of this rule), entered
unassembled or disassembled.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the HTSUS.
54 Fed. Reg. 35127, 35128, (August 23, 1989). EN Rule 2 (a), p.
2, states that:
(I) [t]he first part of Rule 2 (a) extends the scope of any
heading which refers to a particular article to cover not only
the complete article but also that article incomplete or
unfinished, provided that, as presented, it has the essential
character of the complete or finished article.
In general, essential character has been construed to mean the
attribute which strongly marks or serves to distinguish what an
article is; that which is indispensable to the structure, core or
condition of the article. In addition, EN Rule 3 (b), p. 4,
provides further factors which help determine the essential
character of the goods. Factors such as bulk, quantity, weight or
value, or the role of a constituent material in relation to the use
of the goods are to be utilized, though the importance of certain
factors will vary between different kinds of goods.
We are of the opinion that the panel components, not the
aluminum structure component, provide the essential character of
the pool covering system. The panel components protect the pool
from the elements and insulate the covered area. Additionally, the
panel components' transparent design traps sunlight which heats the
water in the pool. The panel component therefore, is the component
which marks or serves to distinguish the completed pool covering
system. As the aluminum structure without the panel components
does not have the essential character of the completed pool
covering system, it cannot be classified as an incomplete pool
covering system.
This is consistent with our findings in Headquarter's Ruling
Letter (HRL) 954785, dated September 22, 1993, which held that the
shade cloth, not the steel structure, of a shade house system for
plants provided the article's essential character. The shade cloth
was found to impart the essential character of the shade house
system because it was the component that protected plants from
sunlight.
It is well settled that, classification is based upon the
condition of an article at the time of importation. U.S. vs.
Citroen, 223 U.S. 407 (1911). Therefore, classification is based
on the aluminum structure's condition as imported. Pursuant to GRI
2 (a), HTSUS, the unassembled aluminum structure is classified in
the same heading as an assembled aluminum structure.
We are of the opinion that the aluminum structure is
classified under subheading 7610.90.00, HTSUS, which provides for,
[a]luminum structures (excluding prefabricated buildings of heading
9406) and parts of structures (for example, bridges and bridge-
sections, towers, lattice masts, roofs, roofing frameworks, doors
and windows and their frames and thresholds for doors, balustrades,
pillars and columns); aluminum plates, rods, profiles, tubes and
the like, prepared for use in structures: [o]ther.
HOLDING:
The aluminum structures for the swimming pool covering system
are classifiable under subheading 7610.90.00, HTSUS, which
provides, in pertinent part, for aluminum structures and parts of
structures, with a column one rate of duty of 5.7 percent ad
valorem.
Sincerely,
John Durant, Director