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HQ 960123




November 3, 1997

CLA-2 RR:CR:GC 960123 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0030

Mr. Barry E. Powell
Grunfeld, Desiderio, Lebowitz & Silverman 707 Wilshire Boulevard, Suite 5555
Los Angeles, CA 90017

RE: Megaland textile "play environment," tent; Note 1(t) to Section XI, Note 1(u) to Chapter 95; EN 63.06, 95.03; The Lexicon Webster Dictionary; HRLs 088146, 089149, 950217, 087116, 088644, 086969, 086867, 085269, 084745, 084128 and 086548

Dear Mr. Powell:

This is in response to your letter of December 16, 1996, to the Customs National Commodity Specialist Division in New York, on behalf of Playhut, Inc., requesting the classification of a Megaland textile "play environment" under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, together with samples, was forwarded to this office for a response. We regret the delay in responding.

FACTS:

Megaland consists of five 100 percent nylon wire framed components. The frames provide the various components' shapes and allow the components to be collapsed and be tied together for easy storage. The five components are designed to be connected to form a play environment. All of the components will be imported together and sold at retail in one box as a 5-piece set.

Two of the components are cube-shaped. One has round openings on all sides, the other has round openings on two sides, one completely closed side and one "mesh" window which is open and closed by a zipper. Two of the components are tunnel-shaped. The last component is the largest and is shaped like a house. One of its sides is closed and has a basketball hoop attached. Two of its sides have round openings. The last side has a two flap opening. The flaps can be rolled up and secured to the sides of the component with ties. The roofs of both the cubes and the house-shaped components are completely covered.

ISSUE:

Whether the Megaland "play environment" is considered a tent, a toy or an other textile article for tariff purposes.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (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 GRI may then be applied. The headings under consideration are as follows:

6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods

6307 Other made up articles, including dress patterns

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof

Note 1(u) to Chapter 95, HTSUS, states that the chapter does not include "Racket strings, tents or other camping goods, or gloves (classified according to their constituent material)."

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The general ENs for Chapter 95, HTSUS, 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 Megaland meets the tariff definition of "tent" it is excluded from classification as a toy.

Heading 6306, HTSUS, 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

In Headquarters Ruling Letter (HRL) 089149 dated July 30, 1991, we held that a play tent was classifiable under subheading 6306.22.9030, HTSUS, 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.

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." The EN 63.06 description of articles belonging to the class or kind, "tents" has a broad scope. Such a broad scope coupled with the dictionary definition's broad scope leads us to believe that for an article to be considered a "tent" it must, at a minimum, be sustained by a frame/skeleton, be covered by some flexible material, and provide a minimum amount of shelter.

While the present Megaland play environment, is made of a flexible textile material and has a framework, the many openings to its various components do not allow it to provide a minimum amount of shelter. Furthermore, the components, when placed together, do not form a tent-like structure. Rather they provide not only a myriad of areas, tubes, cubes and huts where children can "explore" and climb but also a variety of play activities such as basketball.

Heading 6307, HTSUS, describes the subject article because it is an other made up textile article. However, Note 1(t) to Section XI, states that: "This section does not cover, Articles of Chapter 95 (for example, toys, games, sports requisites and nets;.", therefore Megaland will be excluded from classification under heading 6307, if it is classifiable as a toy.

Heading 9503, HTSUS, provides for "Other toys...and accessories thereof," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the ENs to chapter 95 indicate that a toy is an article designed for the amusement of children or adults. In HRL 088146 dated February 23, 1991, Customs indicated that the class of merchandise "toys" includes articles whose principal use is that of amusement, for either children or adults. Due to Megaland's structure, specifically its myriad of shapes, we are of the opinion that the it is principally used for amusement and therefore is a toy.

As Megaland is described by heading 9503, HTSUS, it is excluded from heading 6307, HTSUS. Therefore, it is classifiable under heading 9503, HTSUS, specifically under subheading 9503.90.0030, HTSUS, which provides for " 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."

HOLDING:

The Megaland play environment is classifiable under subheading 9503.90.0030, HTSUS, which provides for " 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," with a general column one free rate of duty.

Sincerely,

John Durant, Director
Tariff Classification Division

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