H313169

HQ H313169 January 13, 2021 OT:RR:CTF:FTM H313169 TSM CATEGORY: Classification TARIFF NO.: 6307.90.98 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 * * * 6307 Other made up articles, including dress patterns * * * 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… * * * 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: * * * (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 manmade 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 tentlike structures are also regarded as tents. They are generally made of manmade 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. * * * The EN to heading 63.07 states in relevant part: * * * 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. * * * 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 subjec

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 * * *6307 Other made up articles, including dress patterns * * * 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…* * * 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