HQ 089449

February 10, 1992

CLA-2 CO:R:C:T 089449 HP

CATEGORY: Classification

TARIFF NO.: 6306.22.9030

Ms. Kathleen M. Haage

Area Director

U.S. Customs Service

Airport International Plaza

Newark International Airport

Newark, NJ 07114

RE: Request for Internal Advice Number 25/91. Screen house.

Cabin tent. made up; plastics; textiles; Gore-Tex ; essential

character; GRI 1.

Dear Ms. Haage:

This is in reply to your memorandum of April 18, 1991,

requesting internal advice on the tariff classification of a

screen/cabin tent imported from Taiwan. Please reference your

file CLA-1-01-N:TB CF.

FACTS:

The merchandise at issue consists of 15\' x 9\' two-room

screen/cabin tent, Style 4663, Nelson/Weather-Rite, Inc. One

room forms a 9\' x 6\' screen house which provides an insect-free

area for eating, playing, and relaxing. The 9\' x 9\' second, or

cabin room constitutes the sleeping and private dressing area.

The roof of the structure and the walls of the cabin area are

made of woven polyethylene strips covered on both sides with a

visible plastics coating. The sides of the screen house portion

and three large windows of the cabin area are made of polyethyl

ene screening in the form of a textile mesh. The windows have a

closable plastic covering. The structure is supported by means

of a zinc-coated steel framework and poles with chain cords.

There is a floor in the cabin area, made of the same material as

the roof. All of the components, along with plastic stakes, are

packed inside a storage/carrying bag.

It is the position of the internal advice applicant, per

counsel Barnes, Richardson & Colburn, that the walls, roof, floor

and room divider impart the essential character of the article,

and that the article should be classified as an article of

plastics.

ISSUE:

Whether the screen/cabin tent is an article of textiles or

plastics under the HTSUSA?

LAW AND ANALYSIS:

Heading 6306, HTSUSA, provides for tents. The Explanatory

Notes to this heading define tents 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 back

pack 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.

Note 1 to Chapter 63, HTSUSA, states that heading 6306

applies only to made up articles of textile fabrics. The screen

house/cabin tent consists of three components. First, woven

polyethylene strips covered on both sides with a visible plastics

coating and making up the roof, cabin floor, and cabin walls.

This plastic/textile combination is classifiable in Chapter 39,

HTSUSA, since (1) the textile fabric is entirely coated on both

sides with plastics, and (2) that plastics coating is visible to

the naked eye. See Note 1(h) to Section XI, HTSUSA, and Note 2

to Chapter 59, HTSUSA. The other components of the screen

house/cabin tent are the polyethylene screening that is con

sidered a textile, and the steel poles, which are classified

under, as indicated above, the provision for tents in Chapter 63,

HTSUSA.

The General Rules of Interpretation (GRIs) to the HTSUSA

govern the classification of goods in the tariff schedule. GRI 1

states, in pertinent part, that \"\... classification shall be

determined according to the terms of the headings and any rela

tive section or chapter notes \...\" Goods which cannot be classi

fied in accordance with GRI 1 are to be classified in accordance

with subsequent GRIs, taken in order. Note 1(h) to Section XI,

HTSUSA, excludes from classification therein articles of Chapter

39\. Note 2(l) to Chapter 39, HTSUSA, excludes from classifica

tion therein goods of Section XI. Counsel has implied that, in

order to ascertain whether the instant merchandise is an \"article

of Chapter 39\" or a \"good of Section XI,\" one must determine the

essential character (by means of GRI 3) of the tent. Counsel has

cited HRL 083789 of March 31, 1988, in support of this argument.

HRL 083789 held neither the side screening nor the nonwoven

plastic-coated roof imparted the essential character, under GRI

3(b), of a screen house. Accord HRL 084819 of October 5, 1989

(adopting essential character analysis of HRL 083789). These

rulings, however, were incorrect to the extent that they specifi

cally introduced GRI 3 at the legal note level as the basis for

determining whether the Chapter 63, Note 1 limitation for made-up

articles, \"of any textile fabric,\" (and the Note 1(h) to Section

XI exclusion of articles of Chapter 39, HTSUSA), included the

subject screen houses. Subsequent GRIs cannot be used to modify

the intended coverage of a Section or Chapter Note. It is only

after merchandise is classified in accordance with these Notes

that the remaining GRIs are consulted. See HRL 085550 of

December 8, 1989 (modifying HRL 083789); see also the Explanatory

Note to Chapter 39, HTSUSA (stating that classification of

textile/plastics combinations is essentially governed by Note

1(h) to Section XI, HTSUSA).

It has been suggested that Customs recent Federal Register

publication, Classification of Garments Composed in Part of

Linings or Interlinings of Specialized Fabrics or Nonwoven

Insulating Layers, 56 Fed. Reg. 46372 (September 12, 1991)

(hereinafter \"Gore-Tex Notice\") requires application of GRI 3 to

determine whether the instant article is a \"good of Section XI,

HTSUSA. This is incorrect. The Gore-Tex Notice held that

garments composed in part of specialized fabrics or nonwovens

should be classified on the basis of that component of the

garment which imparted the essential character under GRI 3(b).

Application of GRI 3, however, was mandated by relevant legal

Notes to Section XI, HTSUSA. These Notes, which apply to either

textile goods of Chapters 50 to 55 (or headings 5809 or 5902) or

articles of two or more textile materials (the tent is composed

of only one textile material), are not applicable to the tent at

issue.

As a result of the above-stated rationale, we are left with

an amalgam of plastic and textile which is simultaneously exclud

ed from the respective plastic (if an article \"of textiles\") and

textile (if an article \"of plastic\") divisions of the tariff

schedule. In addition, neither the HTSUSA nor the Explanatory

Notes aid us in determining what is meant by \"of textiles.\" In

our previous screen house rulings, we held that if the textile

portion imparted a significant characteristic to the tent, the

tent would consequently be deemed a textile article. This

finding was based in part upon General Note 7(e) to the HTSUSA,

which defined, inter alia, \"in part of\" or \"containing\" as

containing \"a significant quantity of the named material.\"

Emphasis added. Since an article \"of textiles\" clearly contains

at least as much textile as an article \"in part of\" textiles, and

less than an article \"wholly of\" textiles, a textile portion

which imparts a significant characteristic must therefore be of a

significant quantity.

We are now modifying this rationale. Since the term \"of\",

as it is used in the legal notes, is not specifically defined in

the tariff schedule or its accompanying Explanatory Notes, it is

our opinion that reference to the subsequent GRIs is appropriate

to determine the intent of the drafters. Therefore, in an

analysis of whether an article is \"of\" a particular material,

that material which imparts upon the good its essential character

is the material of which the article is constructed.

GRI 3 states, in pertinent part:

When by application of Rule 2(b) \[goods of

more than one material or substance\] 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) \[which requires

that goods be classified, if

possible, under the more specific

of the competing provisions\], shall

be classified as if they consisted

of the material or component which

gives them their essential charac

ter, insofar as this criterion is

applicable.

The Explanatory Notes (EN) to the HTSUSA constitute the

official interpretation of the tariff at the international level.

While not legally binding, they do represent the considered views

of classification experts of the Harmonized System Committee. It

has therefore been the practice of the Customs Service to follow,

whenever possible, the terms of the Explanatory Notes when

interpreting the HTSUSA. Explanatory Note (IX) to GRI 3 pro

vides:

For the purposes of \[GRI 3(b)\], composite

goods made up of different components shall

be taken to mean not only those in which the

components are attached to each other to form

a practically inseparable whole but also

those with separable components, provided

these components are adapted to one another

and are mutually complementary and that

together they form a whole which would not

normally be offered for sale in separate

parts.

\[C\]lassification \[of sets and of composite

goods\] is made according to the component, or

components taken together, which can be

regarded as conferring on the set as a whole

its essential character.

The factors which determine essential character of an

article will vary from case to case. It may be the nature of the

materials or the components, its bulk, quantity, weight, value,

or the role a material plays in relation to the use of the goods.

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 or

condition of an article.

According to Counsel\'s letter of March 12, 1991, the textile

portion of the tent represents 9% of the value of the entire

tent; by contrast, the plastics/textile combination portion

represents 26% of the tent\'s value. The textile portion weighs

0.50 kilogram, while the plastics/textile combination weighs 12.7

times more, at 6.35 kilograms. The textile portion covers

17,807.08\" squared, while the plastics/textile combination covers

2.65 times more area, at 47,142.87\" squared. The figures for the

steel poles (the poles are not taken into account, per the EN to

heading 6306) are not given.

Although the figures submitted by Counsel show that a

substantial proportion of the tent\'s value, weight and area are

taken up by the plastics coated woven polyethylene strips, a

meaningful amount of the tent is still made from textiles. In

addition, the textile portion of the tent (the screening) extends

the living area, keeps out insects, provides some protection

against the elements, and allows maximum air circulation. The

plastics/textile portion provides additional protection from the

weather.

An essential character analysis is not intended to be a mere

\"numbers game\", but, as we stated above, must focus upon \"what an

article is; that which is indispensable to the structure or

condition of an article.\" Both the plastic and textile portions

are extremely important in the use of the tent. Both serve to

distinguish what the article is: a primarily plastic cabin tent

combined with a primarily textile screen house. It is our

opinion, therefore, that neither the textile nor the plastic

impart the essential character of this article.

GRI 3(c) states that when \"\[g\]oods cannot be classified in

accordance with the above rules\[, such goods\] shall be classified

under the heading which occurs last in numerical order among

those which equally merit consideration.\" As the headings of

Section XI, HTSUSA, appear after those of Chapter 39, HTSUSA,

classification within the former is appropriate.

Subheading 6306.22, HTSUSA, provides for tents of synthetic

fibers. Subheading 6306.29, HTSUSA, provides for tents of other

textile materials. The latter subheading does not merit consid

eration, because the plastics/textile combination is not consid

ered a textile for classification purposes under the HTSUSA.

Classification under subheading 6306.22 is therefore required.

For statistical reporting purposes, subheading 6306.22.9010,

HTSUSA, provides for screen houses of synthetic fibers. The

subject tent is a screen house combined with a cabin tent, and is

therefore not classifiable as a mere screen house.

HOLDING:

As a result of the foregoing, the instant merchandise is

classified under subheading 6306.22.9030, HTSUSA, textile catego

ry 669, as tarpaulins, awnings and sunblinds; tents; sails for

boats, sailboards or landcraft; camping goods, tents, of synthet

ic fibers, other, other. The applicable rate of duty is 10

percent ad valorem.

The designated textile and apparel category may be subdivid

ed into parts. If so, visa and quota requirements applicable to

the subject merchandise may be affected. Since part categories

are the result of international bilateral agreements which are

subject to frequent negotiations and changes, to obtain the most

current information available, we suggest that the internal

advice applicant check, close to the time of shipment, the Status

Report On Current Import Quotas (Restraint Levels), an issuance

of the U.S. Customs Service, which is updated weekly and is

available at any local Customs office.

Due to the changeable nature of the statistical annotation

(the ninth and tenth digits of the classification) and the

restraint (quota/visa) categories, the internal advice applicant

should contact any local Customs office prior to importing the

merchandise to determine the current status of any import re

straints or requirements.

Sincerely,

John Durant, Director

Commercial Rulings Division