The tariff classification of pop-up tent canopies

October 25, 2016 HQ H273380 CLA-2 OT:RR:CTF:TCM H273380 TSM CATEGORY: Classification TARIFF NO.: 6307.90.98 Ms. Neil Helfand Sandler, Travis & Rosenberg, P.A. 505 Sansome Street, Suite 1475 San Francisco, California 94111 RE: The tariff classification of pop-up tent canopies Dear Mr. Helfand, This is in response to your request, on behalf of Above All Advertising, dated January 8, 2016, for a ruling regarding the classification of pop-up tent canopies under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The merchandise at issue is described as follows: “The specific version at issue is the 10 x 10 sized item, the full information for which is available on the company website; we are only seeking a ruling on the 10 x 10 sized canopy… The completed item sold to customers includes either an aluminum or powder coated steel framework, which will be imported separately. The canopy portion at issue is constructed of 100 percent polyester, 600 denier, heavy duty woven polyester fabric, the various sections of which are sewn together with nylon thread. The underside of the canopy top is coated in acrylic to provide water resistance. It additionally contains a small amount of webbing and binding strips of fabric. All canopies are designed exclusively to serve as advertisements for a company or brand, with custom printing featuring, for example company names, logos, slogans, website information, designs/motifs, and related information. Typically they are set up at trade shows, sporting events, craft shows, sporting events, craft shows, flea markets, and festivals, in support of company representatives and whichever product or information they seek to draw attention to.” ISSUE: Whether the tent canopies are classified in heading 4911, HTSUS, as other printed matter, or in heading 6307, HTSUS, as other made up articles. LAW AND ANALYSIS: Classification under the HTSUS is made 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 HTSUS provisions under consideration are as follows: 4911 Other printed matter, including printed pictures and photographs * * * 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…; [Emphasis in original] In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitutes the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August, 23 1989). The General EN to Chapter 49, HTSUS, provides, in pertinent part: With the few exceptions referred to below, this Chapter covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations… Also, printed textile articles such as scarves or handkerchiefs, in which the printing is mainly for decorative or novelty purposes and does not affect the essential character of the goods, embroidery fabrics and prepared tapestry canvases bearing printed designs fall in Section XI. * * * The EN to heading 4911, HTSUS, provides, in pertinent part: This heading covers all printed matter (including photographs and printed pictures) of this Chapter (see the General Explanatory Note above) but not more particularly covered by any of the preceding headings of the Chapter…. The heading includes the following in addition to the more obvious products:   (1)   Advertising matter (including posters), year books and similar publications devoted essentially to advertising, trade catalogues of all kinds (including book or music publishers’ lists, and catalogues of works of art) and tourist propaganda. Newspapers, periodicals and journals, whether or not containing advertising material, are however excluded (heading 49.01 or 49.02, as appropriate).   (2)   Brochures containing the programme of a circus, sporting event, opera, play or similar presentation.   (3)   Printed calendar backs with or without illustrations.   (4)   Schematic maps.   (5)   Anatomical, botanical, etc., instructional charts and diagrams.   (6)   Tickets for admission to places of entertainment (e.g., cinemas, theatres and concerts), tickets for travel by public or private transport and other similar tickets.   (7)   Microcopies on opaque bases of the articles of this Chapter. (8)   Screens made by printing a film of plastics with letters or symbols to be cut out for use in design work…  (9)   Maximum cards and illustrated firstday covers not bearing postage stamps (see also Part (D) of the Explanatory Note to heading 97.04).  (10) Self-adhesive printed stickers designed to be used, for example, for publicity, advertising or mere decoration, e.g., “comic stickers” and “window stickers”.   (11) Lottery tickets, “scratch cards”, raffle tickets and tombola tickets. The EN to heading 6307, HTSUS provides, in pertinent 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…. The heading excludes textile articles classified in more specific headings of this Chapter or of Chapters 56 to 62. It further excludes:.. (c) Printed matter (Chapter 49). As the EN to Chapter 49 provides, this Chapter covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations. As a result, we first examine classification in heading 4911, HTSUS. In your submission, you argue that the subject canopies should be classified in heading 4911, HTSUS, as “advertising matter.” The term “to advertise” is not defined in the HTSUS or ENs. In cases where tariff terms are undefined, they are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’"). The verb "to advertise" is defined, in Webster’s Ninth New Collegiate Dictionary (1991), as follows: 1: to make something known to: NOTIFY 2 a: to make publicly and generally known. . . b: to announce publicly esp. by a printed notice or broadcast c: to call public attention to esp. by emphasizing desirable qualities so as to arouse a desire to buy or patronize…. In your submission, you argued that the canopies at issue are designed, marketed and sold to companies seeking specifically to advertise their brand or product, and that companies seeking temporary relief shelters for general use would not purchase the subject canopies. You also stated that the company’s website, found at http://www.abovealladvertising.net/product/tent/10X10/pop-up.htm, shows that the canopies at issue are advertisement products featuring prominent custom printing such as company names, logos, slogans, website information, designs/motifs, and similar information, typically set up at trade shows, flea markets and festivals, in support of company representatives and products or information they seek to draw attention to. Moreover, you stated that the custom printing results in significant cost over and above that of a general use canopy containing little or no printing. You further claimed that they are not advertised, marketed or sold as a shelter, but rather as an advertising venue, and that their ancillary use does not detract from their primary use. Upon review of the above-referenced website, we found that the canopies at issue are described as follows: Perfect for Craft Shows, Flea Markets, Art Festivals, Sports Events, Trade Shows, and anywhere you need a portable shelter. We have your vending needs covered! We sell these pop up tents blank or custom imprinted. These tents are also feature products in our indoor and outdoor kits for great value. Pop up tents are designed for optimum sun protection and shade, pop up tents feature built-in reliability and are constructed with the highest of quality materials. The 100% polyester tops of pop up tents are made of 600 denier, heavy duty polyester that is water resistant and UV protected. Pop up tents are incredibly flexible and convenient, these portable canopies can travel just about anywhere you need protection from the sun. The above description shows that the canopies at issue are portable shelters, designed for optimum sun protection and shade, which are sold either custom imprinted or blank. This does not support your claim that the subject canopies are sold primarily as advertisement venues. In fact, they are primarily described and sold as pop up tents. In your request, you referenced the following rulings, in which various advertising systems were classified in heading 4911, HTSUS. Specifically, you cited: HQ 966020, dated January 23, 2003 (classifying in-store poster boards advertising sunglasses in heading 4911, HTSUS, as trade advertising materials depicting images of sporting activities in which sunglasses were prominently displayed and contained printed text referencing the brand of sunglasses, emphasizing “desirable qualities so as to arouse a desire to buy” the sunglasses); NY L86096, dated August 3, 2005 (classifying a “portable advertising system” featuring a sign consisting of a sheet of printed polyester fabric displaying a logo accompanied by a slogan, mounted on a hoop-like spring-steel frame, supplied in a variety of sizes, shapes and configurations, including several two-panel, tent-shaped designs); NY G83933, dated November 30, 2000 (classifying portable, banner-like signs used for advertising, which come in various sizes and shapes, bearing brand names, logos, marketing slogans, etc.); NY I85785, dated September 6, 2002 (classifying tent-like “curb signs” used for advertising purposes outside supermarkets, convenience stores or the like, consisting of textile fabric supported by a lightweight metal-wire frame); NY I85786, dated September 6, 2002 (classifying “hanging ring signs,” which are advertisements designed to be suspended from the ceiling in supermarkets, convenience stores or the like); NY I85787, dated September 6, 2002 (classifying a “pop up can,” which is a cylinder-shaped article, made of nylon textile fabric supported by a metal spring-wire frame, designed to look like a giant can of soda about 2 feet in diameter and several feet high, with graphics like those found on an actual carbonated beverage can printed on the exterior, used for advertising purposes inside or outside supermarkets, convenience stores or the like); and NY N236315, dated January 8, 2013 (classifying “portable advertising systems,” which are signs consisting of a sheet of printed polyester fabric mounted on a hoop-like spring-steel frame, featuring a logo accompanied by a slogan, supplied in a variety of sizes, shapes and configurations, including several two-panel, tent-shaped designs). Upon review, we find that the canopies at issue here are very different from the advertising boards and signs, designed primarily and exclusively for advertisement and classified in the above rulings in heading 4911, HTSUS. As the company website confirms, the canopies are primarily designed for optimum sun protection and shade, and their function as advertising venues is secondary. By contrast, the items at issue in each of the rulings cited can be distinguished from the subject canopies in that they were all single-use items whose only use was to convey the written message they provided. Unlike the subject canopies, those items had no other use. Accordingly, we conclude that the canopies at issue are not classified in heading 4911, HTSUS. This is consistent with prior CBP rulings that have classified merchandise in heading 4911, HTSUS, when its sole purpose was to convey a message, whether that message was utilitarian or for advertising purposes. In those rulings, the material on which the message was written served no other purpose than as a physical conveyance for that message. See, e.g., NY 841653, dated June 21, 1989 (finding that “Orangina” plastic communication totems used as free standing table top displays in restaurants and hotels are classified in heading 4911, HTSUS); NY 805469, dated December 28, 1994 (finding that compressed paper cubes bearing a printed advertising message are classified in heading 4911, HTSUS); NY 813232, dated August 18, 1995 (finding that sheets of plastic bearing words or logos to be used as signs are classified under heading 4911, HTSUS); NY J80637, dated February 11, 2003 (a bottle shaped piece of PVC plastic bearing the word “7 Up” fitted to a wire and a suction cup so that it may be placed on a glass surface was classified under heading 4911, HTSUS); NY N003310, dated November 29, 2006 (polyester textile panels bearing company logos or commercial information are classified under heading 4911, HTSUS); and NY N121337, dated September 29, 2010 (finding that a plastic sign which hangs in the aisle of a store and explains “how to choose a padlock” is classified under heading 4911, HTSUS). Heading 6307, HTSUS, provides for “Other made up articles, including dress patterns.” The heading includes made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. See EN 63.07. The canopies at issue are described by these terms. They are made of textile and have been precluded from classification in other headings of the tariff schedule. As a result, they are classified in heading 6307, HTSUS, as other textile articles. This is consistent with previous CBP rulings whereby outdoor canopies were classified according to the material of the shroud. See NY 856811, dated October 17, 1990 (classifying a dining canopy of polyethylene strips covered on both sides with a visible plastic coating under subheading 3926.90.90, HTSUS, as an other article of plastic); and NY L81420, dated December 17, 2004 (classifying a dining canopy composed of clear polyethylene fabric strips under subheading 3926.90.90, HTSUS, as an other article of plastic). See also HQ H250830, dated February 22, 2015 (classifying outdoor canopies, some of which contained a professional sports team logo on the exterior, in subheading 6307.90.98, HTSUS. HOLDING: By application of GRIs 1 and 6, the tent canopies at issue are classified in heading 6307, HTSUS, and specifically, in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2016 general, column one rate of duty is 7 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch