Internal Advice Request; Classification of duck blinds

HQ H145543 January 2, 2015 CLA-2 OT: RR: CTF: TCM H145543ERB CATEGORY: Classification TARIFF NO.: 6306.22.90 Port Director, Port of St. Louis U.S. Customs and Border Protection 4477 Woodson Road, Suite 200 St. Louis, MO 63134 ATTN: Jose U. Navarro, Supervisory Import Specialist RE: Internal Advice Request; Classification of duck blinds Dear Port Director: This is in regard to a request for Internal Advice, forwarded to this office on January 12, 2011, by the Port of St. Louis, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of duck blinds. FACTS: Kolpin Outdoors, LLP (Kolpin) entered the subject merchandise under heading 9401, HTSUS, as “seats.” No samples were provided for examination, but photos, marketing and advertising describing the products were used in this classification. The duck blinds feature a lightweight aluminum frame overlaid with a polyester textile treated with a waterproof polyvinyl chloride (PVC) coating. They are placed directly on the ground when in use, and the textile creates a floor between the user and the ground. When not in use, or during transport, the blinds fold up or collapse into either a backpack or similar sized carrying bag, small enough to fit into the bed of an average pickup truck. The user steps into the product and sits, lounges, or lays in it while hunting. He folds the textile flaps over himself to perfect concealment from his prey, and to provide protection from the elements. When prey approaches, the hunter will spring upright to shoot or shoot from a seated position. The original submission did not mention that a seat was included, but the photos indicate padding is attached to the interior of the frame for the user to place his hind quarters, while sitting in the product. The Eliminator® Pro-Guide XL™ measures 42” W x 90”L x 20”H to “accommodate large hunters,” and features various pockets to store small objects like blind bags, shells, gear, or decoys. It has a padded head and gun rest and weighs 20 pounds. The Pro-Land’R version contains all of the above features, but measures 36” W x 92” L x 14” H, and weighs 15 pounds. The X-Land’R version also contains the above characteristics and measures 26” W x 84” L x 14” H. It is advertised as a “backpack and ground blind combination” and includes camouflage face mesh to cover the hunter’s face while in use. It has a waterproof polyester coating and 3/4-inch closed-cell foam to protect users from wet and cold. It weighs 14 pounds. ISSUE: Whether the instant duck blinds are classified in heading 6306, HTSUS, which provides for “tents,” or heading 9401, HTSUS, which provides for “seats.” LAW AND ANALYSIS: Classification under the 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 at issue are as follows: 6306: Tarpaulins, awning and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: *** 9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 63.06(4) states: Tents are shelters made of lightweight to fairly heavy fabrics of made-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. [Emphasis added] EN 94.01 provides, inter alia, that: …this heading covers all seats…, for example: Lounge chairs, arm-chairs, folding chairs, deck chairs, infants’ high chairs and children’s seats designed to be hung on the back of other seats (including vehicle seats), grandfather chairs, benches, couches (including those with electrical heating), settees, sofas, ottomans and the like, stools (such as piano stools, draughtsmen’s stools, typists’ stools, and dual purpose stool-steps), seats which incorporate a sound system and are suitable for use with video game consoles and machines, television or satellite receivers, as well as with DVD, music CD, MP3 or video cassette players. Kolpin argues that the subject merchandise is a “seat” and thus classified under heading 9401, HTSUS. Heading 9401, HTSUS, is an eo nomine provision, which “describes a commodity by a specific name, usually one well known to commerce.” See Ruth F. Strumm, Customs Law & Administration, § 53.2 at 2 (Supp. 1995) (citing United States v. Bruckmann, 65 C.C.P.A. 90, C.A.D. 1211, 582 F.2d 622, 625 n.8 (1978)). “The clear weight of the authorities on the subject is that an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article.” Nootka Packing Co. v. United States, 22 C.C.P.A. 464, 470, T.D. 47464 (1935); see also Lynteq, Inc. v. United States, 976 F.2d 693, 687 (Fed. Cir. 1992) (“Tariff terms contained in the statutory language “are to be construed in accordance with their common and popular meaning, in the absence of contrary legislative intent.””)(Citation omitted). Types of seats are expounded upon in the EN to 94.01. The characteristics of those exemplars are that of household furniture, composed of a rigid or upright seat, with legs and in some cases a back, for a single person to rest upon. The subject merchandise is a portable, collapsible, enclosure formed by patterned, synthetic fabric stretched over a partial frame, with padding, designed to conceal a hunter from its prey. The subject blinds shares no characteristics with the exemplars of EN 94.01. As such, we find that the instant product does not fall under the scope of heading 9401, HTSUS. Kolpin also points to elsewhere in the EN 94.01, which indicates that the heading is also intended to provide for “identifiable parts of chairs.” Therein is a non-exhaustive list of chair parts, such as seat backs and seat bottoms. But Kolpin’s submission does not provide any details regarding the seating component of this product beyond stating that padding is included inside the blind, “for general comfort and also to insulate the hunter on the seat from cold or frozen ground.” No dimensions, characteristics, or marketing or advertising was provided or found to describe the seat itself, which Kolpin argues is the product’s defining feature. Mere cushioning does not establish the subject merchandise as a “seat.” Further, the instant merchandise is not a component part, or unassembled merchandise, as provided for under a GRI 2 analysis. It is finished in its condition as imported, and thus a parts analysis is inapplicable here. Kolpin’s submission presents three arguments based on a GRI 3 analysis. First, that classification in heading 9401, HTSUS, is correct by application of a GRI 3(a) because that heading is more specific than heading 6306, HTSUS. In the alternative, Kolpin next argues that the seating component of the product imparts the goods’ “essential character” pursuant to a GRI 3(b) analysis. Lastly, Kolpin argues that pursuant to GRI 3(c), the subject duck blinds are provided for in heading 9401, HTSUS, because that heading occurs last in numerical order among those which equally merit consideration. However, a GRI 3 analysis is only appropriate if the goods cannot be classified pursuant to GRI 1. Moreover, the duck blinds are not prima facie classifiable under two or more headings, and CBP need not engaged in a GRI 3 analysis. Regarding the scope of heading 6306, HTSUS, the Court of International Trade held in Target Stores v. United States, No. 06-00444 (Ct. Int’l Trade Mar. 22, 2012) that “tents” must provide protection for the user from weather elements, other than sunshine. Kolpin contends that the duck blinds do not satisfy this requirement as they are not designed to protect against the elements. Yet, the subject merchandise is marketed and advertised as “durable” given that it is waterproof on all sides with a PVC coating, including the ground and on top of the user. One model even has a foam core designed to protect the user from wet and cold weather elements, for prolonged periods of time. The subject merchandise does protect against weather elements. In sum, the subject duck blind is a tent under or in which, a user hunts. The nature and purpose of the merchandise is to provide a protective shelter for the user when outdoors. It has the characteristics of a tent, and satisfies the EN to 63.06 as a tent. Heading 6306, HTSUS encompasses a variety of tents which may vary in size, shape, and function, but that forms a protected enclosure for the user. That a small amount of padding is included as a feature, does not remove the product from classification as a tent, or diminish its characteristics as a tent. Further, CBP has been consistent in its classification of duck blinds. See HQ 962147, dated April 6, 1999 (classifying duck blinds in heading 6306, HTSUS), see also NY G89588, dated April 18, 2001, (whereby CBP classified a waterfowl blind, a tubular metal frame in which a hunter lies down and draws the hinged flaps over his body to perfect concealment, under heading 6306, HTSUS). CBP has also been consistent in classifying hunter’s chairs, which are distinguishable from the subject duck blinds.  HOLDING: By application of GRI 1, the subject duck blinds are classified in heading 6306, HTSUS, specifically subheading 6306.22.90, HTSUS which provides for “Tarpaulins, awnings and sunblinds; tents…: Tents: Of synthetic fibers.” The general, column one rate of duty is 8.8 % ad valorem. Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompany duty rates are provided online at www.usitc.gov . You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the public version of the decision available to CBP personnel, and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division