HQ 959629 - Protest 2704-95-102357; Beauty & the Beast playhouse, G.I. Joe playhouse, Batman Slumber tent; Note 1(u) to Chapter 95; ENs 63.06; HRLs 089149, 950217, 087116, 088644, 086969, 086867, 085269, 084745, 084128 and 086548 - United States International Trade Commision Rulings

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HQ 959629

April 17, 1997

CLA-2 TC:RR:FC 959629 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9890

U.S. Customs
Port Director
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-95-102357; Beauty & the Beast playhouse, G.I. Joe playhouse, Batman Slumber tent; Note 1(u) to Chapter 95; ENs 63.06; HRLs 089149, 950217, 087116, 088644, 086969, 086867, 085269, 084745, 084128 and 086548

Dear Port Director:

The following is our response to the application for further review of Protest 2704-95-102357 concerning your actions in classifying and assessing duty on playhouses and slumber tents, under the Harmonized Tariff Schedule of the United States (HTS). Literature containing pictures of the subject articles were submitted for our review together with additional submissions dated August 26, September 16, and October 26, 1996. A meeting was held on January 23, 1997. Samples of a Batman and Buzz Light Year vehicle tent were submitted and discussed at the meeting. We note however, that the port report as well as the invoices indicate that such a tent was not part of the protested entries. Accordingly, its classification will not be addressed by this decision.

FACTS:

Both the slumber and play tents consist of a 0.15 millimeter thick polyvinyl chloride shell, polyvinyl poles which measure 1.3 millimeters in diameter and polyethylene connectors. We note that the protestant indicates that newer versions of the tents contain a cord which connects the plastic poles.

The playhouse tent's frame creates the typical peak triangular tent frame except for the mid-section which is squared. Because of this squaring, the frame appears to be a "house" shape. When assembled the playhouse frame measures 44 inches high and creates a base which measures 44 inches long by 33 inches wide. The slumber tent poles assemble to form the
typical tent frame except instead of peaking in a triangular form, they create an arch. When assembled, the slumber tent measures 33 inches high and has the same base measurements as the playhouse frame.

Construction of both tents is completed by placing a vinyl shell over the frame. All of the shells are roller printed with various children's images and contain a slit opening on one end and a "window" on the other. Protestant notes that the shells do not provide a floor, any mechanism by which any of its openings may be closed nor is there any mechanism to secure the frame and shell to the ground. Submitted literature indicates that "the play house/slumber tent is not intended for camping usage or extended outdoor use."

The protestant entered the plastic playhouse and slumber tents in January of 1995, and was directed to classify them under subheading 3926.90.9890, HTS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other," dutiable at the column one rate of 5.3 percent ad valorem. Protestant asserts that the playhouse and slumber tents are classifiable under subheading 9503.90.0030, HTS, as "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof : Other: Other toys (except models), not having a spring mechanism," free of duty under column one. The entries were liquidated on April 28, 1995. A protest was timely filed on July 27, 1995.

ISSUE:

Whether the playhouse and slumber tents are considered plastic tents or toys for tariff purposes.

LAW AND ANALYSIS:

Classification under the HTS is made in accordance with the General Rules of Interpretation (GRI). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTS by offering guidance in understanding the scope of the headings and GRIs. Heading 3926, HTS, provides for other plastic articles. Heading 9503, HTS, provides for other toys. Note 1(u) to Chapter 95, HTS, states that the chapter does not include "Racket strings, tents or other camping
goods, or gloves (classified according to their constituent material)." The general ENs for Chapter 95, HTS, state, in pertinent part, that, "Apart from the articles excluded in the following Explanatory Notes, this Chapter also excludes:...(c) Tents and camping goods (generally heading

63.06)...." Therefore, if the subject articles meet the tariff definition of "tent" they are excluded from classification as a toy.

Heading 6306, HTS, provides for "Tarpaulins, Awnings and Sunblinds; Tents; Sails for Boats, Sailboards, or Landcraft; Camping Goods." EN 63.06 defines the term "tent" as:

(4) Tents are shelters made of lightweight to fairly heavy fabrics of man-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. 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 tent-like structures are also regarded as tents. They are generally made of man-made 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 heading excludes umbrella tents of heading 66.01

(5) Camping goods. This group includes canvas buckets, water bags, wash basins; ground-sheets; pneumatic mattresses, pillows and cushions (other than those of heading 40.16); hammocks (other than those of heading 56.08).

In Headquarters Ruling Letter (HRL) 089149 dated July 30, 1991, we held that a play tent was classifiable under subheading 6303.22.9030, HTS, as a tent because the definition of "tent" set forth in the ENs was broad enough to cover many types of tents, including play tents. See HRL 950217 dated December 19,1991, affirming HRL 089149. See also: HRLs 087116 dated July 17, 1990; 088644 dated June 13, 1991; 086969 dated April 27, 1990; 086867 dated April 26, 1990; 085269 dated April 13, 1990; and 084745 dated September 15, 1989, all indicating that play and slumber tents met the EN definition of "tents" and therefore were excluded from classification as toys. Like the aforecited rulings, the present play and slumber tents fall within the EN description of "tent" and are therefore according to Note 1(u) to Chapter 95, HTS, excluded from classification as a toy.

Protestant asserts that the language of Note 1(u) to Chapter 95, HTS, which states in pertinent part, "...this Chapter also excludes:...(c) Tents and camping goods (generally heading 63.06)...," indicates that the "tents" excluded from Chapter 95, HTS, are limited to those with a textile constituent material. We disagree. Because the language of the parenthetical reference begins with the word generally, we do not find persuasive any argument which suggests the extremely narrow intent to exclude only textile tents from Chapter 95. Having consulted the ENs, and construing the tariff as a whole, Note 1(u) to Chapter 95, HTS, is not limited in scope to textile tents and thus may exclude tents made of a variety of materials. See HRL 084128 dated July 14, 1989, which indicates that the EN 63.06 definition of tent is very broad and includes a wide variety of structures. Such structures include screen houses and dining canopies, but they must be classified according to their constituent material. See also, HRL 086548 dated April 12, 1990, indicating a car shelter met the definition of "tent" and was classifiable according to its constituent material.

According to Protestant, The Lexicon Webster Dictionary, defines "tent" as "a portable shelter consisting of some flexible covering, such as skins, matting or canvas, stretched and sustained by poles." Protestant has suggested that EN 63.06 as well as dictionary definitions of the term "tent" indicate that a tent's constituent material must be "sturdy." However, there is no reference to sturdiness in either the EN, or protestant cited definition. Rather, the definitions, in particular the dictionary definition, seem to indicate that flexibility and the ability of a material to stretch are the necessary qualities of a tent's constituent material. As the subject articles are vinyl, which is both stretchy and flexible, its constituent material does not exclude its classification as a tent.

Protestant suggests that the playhouses' and slumber tents' lack of various structural features including a floor, any mechanism by which any of its openings may be closed or any mechanism to secure the frame and shell to the ground prevent the articles' classification as tents. Customs has repeatedly held that the presence or absence of such structural features does not separate playhouses and slumber tents from the class or kind of articles known as tents. See HRLs 089149, 950217, 087116, 088644, 086969, 086867, 085269 and 084745. Additionally, protestant asserts that the subject articles are not "tents" because they fail to provide "shelter." We disagree. In HRL 088644 we indicated that a tent merely needs to be capable of providing shelter. Submitted literature states that "the play house/slumber tent is not intended for camping usage or extended outdoor use." This indicates that the playhouses and slumber tents are capable of short term outdoor use. The instant tents are as capable of protecting their occupants from the sun, a rain shower, and even light winds, as are the many other exemplars of the Explanatory Notes. Therefore, the subject tents provide the adequate amount of "shelter" for their intended purpose.

In conclusion, protestant suggests that the playhouses and slumber tents are classifiable as a toy because they are designed and manufactured to recreate for young persons a realistic play situation and can be purchased in toy stores. Not every article which provides amusement or "play situations" to children is considered a toy for classification purposes. Note 1 to Chapter 95, HTS, lists several articles which might be considered toys , but which are excluded from Chapter 95, HTS. Children's tents are an example. If the Chapter Note did not instruct Customs to exclude "tents," each case would have to be judged against the parameters for classification of "toys" as well as "tents." Instead, note 1(u) relieves us of that dilemma. Finally, we note that Customs classifies merchandise in the condition in which it is imported. How and where an article is sold is an ancillary consideration. The subject articles meet the definition of tent and therefore are, pursuant to Note 1(u) to Chapter 95, HTS, excluded from classification in Chapter 95; regardless of their claimed use.

HOLDING:

The protest should be DENIED. The subject playhouse and slumber tents are classifiable under subheading 3926.90.9890, HTS, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other" and has a 1995 column one duty rate of 5.3 percent ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

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