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HQ 962400





December 17, 1998

CLA-2 RR:CR:TE 962400 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Ms. Anne Ornstein
Lillian Vernon Corporation
One Theall Road
Rye, New York 10580-1450

RE: Classification of a bed tent

Dear Ms. Ornstein:

This is in response to your letters, dating from December 10, 1997, through August 27, 1998, wherein you request a classification determination under the Harmonized Tariff Schedule of the United States (HTSUS), for a play tent designed to be attached to a bed. A sample was submitted to this office and will be returned under separate cover.

FACTS:

The submitted merchandise, referenced style LV #178Y, is designed to simulate a car and measures 72"X36"X32.5" and is designed to fit over a standard twin mattress. It is specially equipped with four elasticized straps at each corner to facilitate attachment of the play tent to a mattress. When the fabric for this merchandise was examined by the Customs Laboratory, their analysis indicated that the fabric for this merchandise weighs approximately 55.6 g/mý, and is composed of 100 percent filament nylon woven fabric which has not been coated with plastic. The windows, including the side windows, the back window and the simulated front windshield are made of warp knit fabric. The interior of the car bed tent is fitted with textile sleeves which are designed to accommodate plastic poles which form a skeletal framework to support the play tent. This play tent neither features a floor panel nor has any mechanism by which the tent can be secured to the ground when the tent is not attached to the bed.

In your letter you also mention a second style, referenced style LV #186Y, for which you could not provide a sample or include any layout materials. You state however, that this style is essentially identical in construction and materials as the car play tent except that it will be marketed for girls and will be manufactured to simulate a "playhouse" with windows and doors.

ISSUE:

Whether the subject merchandise is properly classified in heading 6306, HTSUS, which provides for, among other things, tents, or heading 9503, HTSUS, which provides for, among other things, other toys?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

There are two competing provisions with respect to the classification of this merchandise: heading 6306, HTSUS, which, among other things, provides for tents, and heading 9503, HTSUS, which among other things, provide for other toys. Each of these provisions also has an exclusionary legal note. Note 1(t) to Section XI, HTSUS, states that, this section does not cover "Articles of chapter 95 (for example, toys, games, sports requisites and nets)." Similarly, Note 1(u) to chapter 95, HTSUS, states that, this chapter does not cover "Racket strings, tents or other camping goods, or gloves (classified according to their constituent material)."

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) constitute the official interpretation of the nomenclature at the international level. While not legally binding, they represent the considered views of classification experts of the Harmonized System Committee. It has been the practice of the Customs Service to follow, whenever possible, the terms of the EN's when interpreting the HTSUS. The EN for heading 6306 provide the following regarding tents:

(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.

Although the term "tents" has been broadly construed by Customs to encompass many types of tents, all merchandise classifiable in that heading must provide a minimum threshold of protection against the elements. Simply stated, all tents classifiable in heading 6306, HTSUS, must be designed for outdoor use and provide some sort of shelter, albeit minimal. In comparing tents to shelters, Customs has made reference to different lexicographic sources for the common definition of "shelter", as for example: "1.a. Something providing cover or protection, as from the weather. b. A refuge: haven. 2. The state of being protected or covered." Webster's II New Riverside University Dictionary, 1074 (1984).

Through a long line of rulings issued on tents, Customs has established the precedent that in order to provide "shelter", a tent need not be:

1. an enclosed structure (as for example, reference made to "marquees" in the EN to heading 6306, which are defined as "large open-sided tent[s], used chiefly for outdoor entertainment", Webster's
II New Riverside
University Dictionary,
728, (1984), and the EN reference to "caravan awnings", which are described as having only three sides (walls) and a roof, and designed to increase the living space provided by a caravan); or

2. be able to provide protection against extremes in temperature (as for example, Customs rulings classifying sun and windshelters as tents. See Headquarter Ruling Letter (HQ) 951774, dated May 28, 1992, classifying a sun/windscreen shelter in heading 6306; HQ 953684, dated April 26, 1993, classifying a cabana in heading 6306; and HQ 951814, dated September 8, 1992, classifying a tent-like structure for protection from wind and sun on the beach or camping, in heading 6306).

Although the tariff for heading 6306, HTSUS, never speaks to the extent of this protection, as the long line of rulings on this topic clearly show, what is required is minimal protection from the elements. In the case of the subject merchandise the fabric construction for these play tents preclude its classification in heading 6306, HTSUS, for the following reasons:

1. The fabric is of flimsy construction and would not be suitable or appropriate for outdoor use;
2. The openwork windows, which are not designed with any rain flaps, would expose the whole enclosure to wind, sun and rain.

Additionally, we note that although there is no mechanism by which this tent can be anchored to the ground to secure its position, this merchandise does feature something very particular, that is, four elasticized straps at each corner to facilitate its attachment to a mattress. Certainly, these added features are a clear indication that this merchandise is intended for use in an indoor, rather than an outdoor, environment.

Chapter 95, HTSUS, provides for, among other things, toys. Although the term "toy" is not defined in the tariff, the EN to chapter 95, HTSUS, state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys", this term has been interpreted by Customs as equating "toys" with articles "designed for the amusement of children and adults." Such design for the amusement of children or adults must be corroborated by evidence of the article's principal use.

In Headquarters Ruling Letter (HQ) 954239, dated September 14, 1993, Customs classified virtually identical merchandise, referred to as a "toy bed tent", in chapter 95, HTSUS. The merchandise therein, similar to the merchandise at issue, consisted of a base designed to fit a twin size mattress for a bed, a frame in the shape of a tent, and a dinorsaur motif fabric cover for the frame. The fabric cover also featured two mesh "sunroofs." The rationale in that determination was based on the fact that the article was principally designed to function for indoor use, permitting a child to pretend to be "camping" while in the comfort of their bed. As the subject merchandise is also designed to function indoor on a bed, by way of four elasticized corners on the fabric cover, permitting a child to simulate "driving" in a car, the merchandise is similarly classified in chapter 95, HTSUS.

Based on the foregoing, we conclude that the subject merchandise is properly classified in heading 9503, HTSUS, which provides for, among other things, other toys.

HOLDING:

The subject merchandise is properly classified in subheading 9503.90.0045, HTSUS, which provides for, "other toys: reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: other: other toys and models." The applicable general column one rate of duty is "Free".

Sincerely,

John Durant, Director
Commercial Rulings Division

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