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HQ 967600




March 21, 2005

CLA-2: RR:CR:TE: 967600 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.99.0000

Mr. Joseph W. Zehnder, President
Outdoor Concepts, Inc.
P.O. Box 140156
Boise, ID 83714

RE: The tariff classification of a camping organizer from China; NY L81785, affirmed

Dear Mr. Zehnder:

This is in response to your letter dated January 12, 2005, requesting reconsideration of New York Ruling Letter (NY) L81785, issued on January 5, 2005, by the Bureau of Customs and Border Protection (CBP). NY L81785 addresses the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of “Tree Huggerz,” an organizer designed to be attached to a tree.

FACTS:

A description of the sample that you submitted was set forth in NY L81785:

The submitted sample, identified as a “Tree Huggerz,” is a camping organizer that is a system of metal hooks inside a woven nylon fabric base. The zippered case, which unfolds to an approximate size of 24” x 8½”, features an interior with six heavy steel hooks, two mesh storage pockets, five built-in fabric loops, and a nine-foot strap. You indicate that the strap fits around trees that are two to eleven feet in circumference.

You state that the organizer is used to provide campers with a convenient location to place personal items and outdoor gear. The packaging shows frying pans and caps hanging from the hooks and knives and various utensils stuck into the loops.

We emphasize that the “case” forms part of the organizer. The hooks, storage pockets, fabric loops, and strap are permanently attached to the inside of the case. To use the organizer, the case is unzipped, unfolded, and strapped to a tree (with the hooks, storage pockets, and fabric loops facing outward). Miscellaneous items can then be hung on the organizer’s hooks or inserted into the storage pockets or loops.

In NY L81785, CBP ruled that the “Tree Huggerz” organizer was classified in subheading 6306.99.0000, HTSUSA, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Other: Of other textile materials.” The applicable rate of duty was set forth as 4.5 percent ad valorem.

In your January 12, 2005 letter, you request a review of NY L81785, asserting that: (i) the “Tree Huggerz” organizer is not made of textile materials, (ii) the product is not solely used for camping, and (iii) the assessment of duty on the merchandise at the rate of 4.5 percent ad valorem will reduce your chances of building a successful business. While you request review for the above reasons, you do not set forth a specific provision where you believe the organizer is properly classified. At our request, you submitted a new sample of the merchandise, in its packaging, on February 24, 2005. This sample will be returned to you under separate cover.

ISSUE:

Whether the “Tree Huggerz” organizer is classified in subheading 6306.99.0000, HTSUSA, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Other: Of other textile materials.”

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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 GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

We disagree with your first assertion that the “Tree Huggerz” organizer is not made of textile materials. Our review of the sample confirmed that the case of the organizer, by far the largest part of the organizer, is constructed of woven nylon fabric, a textile material. The organizer meets the definition of “made up” set forth in Note 7 to Section XI of the HTSUSA because it has been “assembled by sewing, gumming or otherwise.” The organizer falls within the scope of Subchapter 1, Chapter 63, HTSUSA, under Note 1 of the Chapter which states, that “Subchapter 1 applies only to made up articles, of any textile fabric.”

We do not disagree with your second assertion that the product is not solely used for camping. However, we find that the product will primarily be used as a camping good. The issue of class or kind was discussed in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). In Carborundum, the court, in determining whether an iron-silicon alloy was in fact used for the manufacture of ferrous metals, noted that "[t]he importer must establish that the imported merchandise belongs to a class or kind of merchandise which is commonly used as raw materials in the manufacture of ferrous metals." Consequently, even if the merchandise was not found to be used specifically for the manufacture of ferrous metals, it could still be considered a part of that class or kind of merchandise if it satisfied certain criteria.

To establish class or kind, the Carborundum court articulated, and CBP has repeatedly applied, a variety of factors, including: the general physical characteristics of the merchandise; the expectation of the ultimate purchaser; the channels of trade in which the merchandise moves; the environment of sale (accompanying accessories, manner of advertisement and display); and the use of the merchandise. Although application of these factors is often essential to determine class or kind, it is additionally significant to note that not every factor can or should be applied in each instance and that applicability is dependent upon the particular merchandise at issue, as well as the available information.

In the case at hand, you submitted a sample of the merchandise in its packaging. Using this information, we can apply each of the factors listed above except the channels of trade in which the merchandise moves. We find that the general characteristics of the organizer show that it is within the class or kind of merchandise held to be “camping goods.” It is recognized that the article is intended to be used in the outdoors, strapped to a tree, to organize miscellaneous articles. The article’s physical features support this: its adjustable strap is specifically designed to be wrapped around a tree, and its hooks, pockets and loops are definitely intended to hold miscellaneous goods. It is also recognized that the article is designed for use in outdoor locations where people will be spending extended periods of time. One would not go to the trouble of organizing articles that the organizer is designed to hold if they did not intend to remain in that location long enough for such organization to be worthwhile. Camping, by definition, requires the construction of a camp, an area that people will inhabit and use as a base in their extended outdoor endeavors. While we acknowledge that the organizer could be used to organize articles associated with other outdoor activities such as fishing, hunting, rafting, picnicking, etc., we find that the organizer will primarily be used as a camping good. The packaging of the organizer supports this, showing the organizer being used in obvious camping situations. The front of the packaging shows a tree with a sign on it reading, “CAMPING Organize Your Outdoor Activities with Tree Huggerz!” We also find that the ultimate purchaser would expect to use the organizer primarily as a camping good and that the merchandise would actually be used in this way. Based on these factors, we find that the “Tree Huggerz” organizer does fall within the class or kind of goods identified as “camping goods” and is classified accordingly.

In summary, the organizer is a “made up” article of textile materials. Based on the organizer’s general physical characteristics, the expectation of the ultimate purchaser, its environment of sale (packaging); and the use of the merchandise, we also find it to be a “camping good.” Consequently, we find that the organizer is specifically provided for in subheading 6306.99.0000, HTSUSA, which provides for, among other items, “camping goods: Other: Of other textile materials.”

Your third assertion is that the assessment of duty on the merchandise at the rate of 4.5 percent ad valorem will reduce your chances of building a successful business. The Harmonized Tariff Schedule of the United States (HTSUS) is a statutory enactment by the Congress. The rates in the HTSUS are based on the historical treatment of the particular imported merchandise involved, as well as the effect that merchandise may have in general on our domestic economy. In any event, CBP is without authority to administratively alter any portion of the tariff.

HOLDING:

The “Tree Huggerz” organizer is made of textile materials and is a camping good. Accordingly, it is classified in subheading 6306.99.0000, HTSUSA, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Other: Of other textile materials.” The applicable column one, general duty rate under the 2005 HTSUSA is 4.5 percent ad valorem.

NY L81785, dated January 5, 2005, is affirmed.

Sincerely,

Myles B. Harmon, Director

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