HQ 0954239 - HRL 085353 revoked. Toy bed tent not camping good not furnishing article. - United States International Trade Commision Rulings

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HQ 954239

September 14, 1993

CLA-2 CO:R:C:T 954239 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

Mr. Jack Ritterman
Business Manager
Performance Products Division
Springs Industries, Inc.
787 Seventh Avenue
New York, NY 10019

RE: HRL 085353 revoked. Toy bed tent not camping good not furnishing article.

Dear Mr. Ritterman:

This is in reply to your letter of May 21, 1993. That letter concerned the tariff classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of play bed tent, produced in Korea.

FACTS:

The merchandise at issue, a play bed tent, consists of a base designed to fit a twin bed. The base is sewn to a fabric upper serving as the tent's roof, and plastic poles provide for the tent's shape. The base is made of a 65% polyester / 35% cotton woven blend fabric. The upper portion of the tent is made of a 100% nylon woven fabric printed with various whimsical designs such as a dinosaur motif. The upper portion also has two mesh "sunroofs." The shape is formed by attaching the bottom portion to a mattress in the same manner as a fitted sheet, and then assembling the two poles and placing them within the article.

This merchandise was first imported into the United States in 1985. In preparation for these importations, you received NYRL 812492 of March 4, 1985, classifying the tents under the Tariff Schedules of the United States (TSUS) provision for "other toys" (item 737.9565). No further importations were undertaken until 1989, when Alliance International (your Los Angeles broker) requested and obtained HRL 085353 of October 20, 1989. In that ruling, Customs classified the play bed tent under subheading 6304.91, HTSUSA, as other furnishing articles. You disagree with that decision, and request that the merchandise be classified as a toy.
ISSUE:

Whether the play bed tent is classifiable as a toy under the HTSUSA?

LAW AND ANALYSIS:

Heading 9503, HTSUSA, provides for toys not classified in headings 9501 or 9502, 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 such "classification shall be determined according to the terms of the headings and any relative section or chapter notes. . . ." Note 1(u) to Chapter 95, HTSUSA, states that the "chapter does not cover: Racket strings, tents or other camping goods, or gloves (classified according to their constituent material)." As a result, if the play tent meets the definition of "tents or other camping goods," it cannot be classified as a toy.

In HRL 085353, we stated that "[a]lthough the merchandise at issue is a tent, it is not a tent that could be used for camping. It fits over a mattress and would be used in a child's bedroom. It is not the type of tent that is intended to be classified under heading 6306, HTSUSA." This statement was correct. An examination of the sample reveals a lightweight and flimsy construction not designed for outdoor use where durability is essential. This merchandise is clearly distinguishable from indoor/outdoor play tents, which would meet the tariff definition of "camping goods." Since the bed tent does not meet this definition, Note 1(u)'s exclusion from Chapter 95, HTSUSA, does not apply. Accordingly, if the bed tent meets the definition of a "toy", it is appropriately classifiable therein.

As we stated above, heading 9503, HTSUSA, provides for, inter alia, other toys. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System (Harmonized System) constitute the official interpretation of the scope and content of the tariff at the international level. They represent the considered views of classification experts of the Harmonized System Committee. Totes, Inc. v. United States, No. 91-09- 00714, slip op. 92-153, 14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158 (Ct. Int'l Trade 1992). While not treated as dispositive, the EN are to be given considerable weight in Customs' interpretation of the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993). It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to Chapter 95, HTSUSA, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults."

It is Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUSA. In this case, since the article will be principally used as a toy, it is classifiable in heading 9503. We note that the tent is designed to function indoors on a bed, permitting a child to pretend to be camping outdoors, perhaps in the make-believe world depicted by the toy tent's design. Further, we agree with your arguments that the toy tent will not be used as bedding, but will be used for a relatively short period of time, enabling a child to play. The fact that the article is sold in toy stores, and that the environment of the sale (e.g., the advertisement and the display) apparently is geared to the child-consumer, is suggestive, but not probative, of classification as a toy. Accordingly, HRL 085353's classification of the bed tent as an other furnishing article was incorrect, and is hereby revoked.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 9503.90.6000, HTSUSA, as other toys not having a spring mechanism. The applicable rate of duty is 6.8 percent ad valorem.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are revoking HRL 085353 of October 20, 1989, pursuant to 19 C.F.R. 177.9(d)(1), to reflect the above classification effective with the date of this letter. For the purposes of future transactions in merchandise of this type, including that for which the present classification is requested, HRL 085353 will not be valid precedent.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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