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HQ 962984




March 23, 2000

CLA-2 RR:CR:GC 962984 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030; 9503.90.0045.

Mr. Peter A. Powell
C.H. Powell Company
1 Intercontinental Way
Peabody, MA 01960

RE: Dome tent, sun shelter, house-style tent and tunnel, headings 6306 and 9503, HTSUS; EN 63.06; Note 1(u) to Chapter 95.

Dear Mr. Powell:

This is in response to your letter of June 24, 1999, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of children’s play tents and play houses pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, on behalf of Seneca Sports, Inc., was forwarded to this office for response. You submitted pictures and specifications, including an advertisement for three of the subject articles, for our examination. No samples were provided. We regret the delay in responding.

FACTS:

Your literature describes: (1) a dome tent, item # not provided; (2) a sun shelter, item #31540; (3) a house-style tent, item # not provided; and (4) a tunnel, item #31530. The merchandise is described as “children’s play tents.” The dome tent, the sun shelter and the tunnel are made of brightly colored woven nylon fabric with fiberglass poles for support. The house-style tent (“house tent”), consists of a fiberglass pole frame enclosed by a printed, water repellant, nylon fabric covering. The dome tent measures approximately 4.5 feet by 4.5 feet by 5 feet. The tunnel measures approximately 2 feet by 2 feet by 5 feet. The sun shelter measures approximately 4.5 feet by 4.5 feet by 5 feet, and the house tent measures approximately 4 feet,10 inches by 4 feet by 4 feet, 10 inches.

The dome tent and sun shelter are supported by fiberglass poles. The fiberglass poles are secured to the dome tent and the sun shelter by inserting them through fabric loops sewn along the exterior portion of the tent from the ground towards the center of the dome. There are four loops, each formed by fabric doubled over and sewn closed with a reinforced seam parallel to four outer edges of these articles. The four loops are open at the top and bottom of each seam. The ends of the fiberglass poles are shown in the accompanying literature as being inserted into the ground to stabilize the dome tent and the sun shelter. You state, however, that the fiberglass poles have rounded capped ends to facilitate the articles’ quick and easy movement once erected.

The dome tent has two openings. The first opening operates as the entrance and exit. The second is an aperture, to which a tunnel may be attached. Both openings may be secured shut. The entrance/exit opening has a zippered flap for the bottom half of the opening and an upper flap that may be raised or lowered above the upper half of the opening. When the tunnel is not attached, the aperture may also be secured closed by a nylon fabric flap. This flap is attached above the tunnel aperture on the exterior side of the panel. When the tunnel is attached to the aperture, the tent flap may be tied back by nylon straps attached to the outside of the tent. In the picture it appears to have both a floor and a fully covered ceiling. You state, however, that the dome tent has no floor.

The sun shelter is comprised of nylon fabric panels sewn together to form a unitary covering with four sides and a dome-like roof. The sun shelter is taller than the dome tent. It has no floor. The sun shelter is supported by fiberglass poles inserted into four nylon fabric loops, similar in construction, form, and use to those loops provided on the dome tent. These loops, however, are longer to accommodate longer (taller) fiberglass poles. As with the poles on the dome tent, those here form an apex above the roof of the domed roof. Nylon fabric straps, sewn to the shelter’s roof, are tied to secure the roof to the intersecting poles. In the advertisement, the tips of the supporting fiberglass poles, appear to be inserted into the ground. However, you state that the tips of these poles are also rounded and capped.

A nylon fabric panel covers one side of the sun shelter. A circular aperture is located toward the center base portion of this panel. A tunnel may be attached by hook and loop fasteners to this aperture. When the tunnel is not affixed, a nylon fabric flap, sewn at its upper end to the exterior side of this panel, may be extended and secured to cover the aperture. The remaining three sides are approximately three-quarters open and uncovered from the ground upward. The sun shelter is sold with or without a picnic table constructed of durable weather resistant plastic.

The house tent consists of a nylon fabric covering placed over a frame constructed with flexible fiberglass poles inserted into molded corner pieces. The house tent has a roof and a door, but no floor. The entry door/flap to the house tent is opened, or secured closed, by a zipper. The covering will be printed with a house design showing, inter alia, a shingle roof, windows with flower boxes and doors with doorknobs or handles. The specifications show that there are no loops at the exterior base corners of the covering. There is, however, nylon fabric sewn under each of the four base corners (corner patches). These nylon corner patches are used to secure the covering to the base of the fiberglass pole frame.

The tunnel has internal supports that are sewn into its nylon fabric. These internal supports are sewn into the fabric and provide the tunnel’s circular shape. You represent that the internal supports will be made of fiberglass. The internal supports do not appear to protrude from the nylon fabric. You represent that the supports are circular in form and cannot be inserted into the ground to stabilize the tunnel. Neither of the two ends of the tunnel are covered, nor can they be secured shut. You have represented that this article is a separate, unit, and that it is packaged, shipped, entered and intended for sale separate from the dome tent, the sun shelter, and the house tent.

The literature indicates that these products are for outdoor use. You have indicated that each item, not just the tunnel, will be entered and sold separately.

ISSUE:

Whether the articles are classified under heading 6306, HTSUS, as tents, or under heading 9503, HTSUS, as toys.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

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

Tents:

6306.22 Of synthetic fibers:

Other

6306.29.00 Of other textile materials

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

9503.90.00 Other

The general ENs for Chapter 95, HTSUS, state, in pertinent part, that, "[a]part 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 toys.

Further, 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)."

Customs has generally determined that articles similar to the instant merchandise were classifiable under subheading 6306.22.90, HTSUS, See HQ 963574, dated September 24, 1999; HQ 962147, dated April 6, 1999; HQ 085269, dated April 13, 1990; and HQ 087116, dated July 17, 1990. However, in a number of rulings involving merchandise distinguishable from the present articles, Customs has determined, for example, that a slumber hut, a multi-unit play environment, a ball pit, a ball barrel, and a slipcover play house (without a frame), were classifiable under heading 9503, HTSUS, as toys (See, HQ rulings: 962408, 960123, 956974, 957639 and 959998).

We begin our analysis with the terms of heading 6306, HTSUS, which provides for, "Tarpaulins, Awnings and Sunblinds; Tents; Sails for Boats, Sailboards, or Landcraft; Camping Goods."

EN 63.06 provides that:

(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.

In HQ 089149, dated July 30, 1991, Customs ruled that a play tent was classifiable under subheading 6306.22.90, because the definition of "tent" set forth in the ENs was broad enough to cover many types of tents, including play tents. See also, HQ 950217, dated December 19,1991, affirming HQ 089149. See also: HQ 087116, dated July 17, 1990; HQ 088644, dated June 13, 1991; HQ 086969, dated April 27, 1990; HQ 086867, dated April 26, 1990; HQ 085269, dated April 13, 1990; and HQ 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.

Not every article, which provides amusement or “play situations” to children, is considered a toy for classification purposes. Note 1 to Chapter 95, HTSUS, lists several articles that might be considered toys, but which are excluded from Chapter 95. Children’s tents are a prominent example of this. 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) to Chapter 95, excludes “[r]acket strings, tents or other camping goods, . . ..” 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 that meet the definition of a tent, should be, pursuant to Note 1(u) to Chapter 95, excluded from classification in Chapter 95; regardless of their claimed use.

In accordance with the aforecited rulings, the dome tent, the sun shelter, the house tent, and the tunnel must be examined to determine whether they meet the term “tent” in heading 6306 in light of its EN, and would therefore, according to Note 1(u) to Chapter 95, be excluded from classification as toys.

The Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 1999, p.1215, defines "tent" as "a collapsible shelter of fabric (as nylon or canvas) stretched and sustained by poles and used for camping outdoors or as a temporary building.” The description of articles belonging to the class or kind, "tents," in EN 63.06, is very broad in scope. The breadth of this scope coupled with the dictionary’s broad definition leads us to believe that for an article to be considered a "tent" it must, at a minimum, be covered by some flexible material, be sustained by a frame/skeleton, and provide a minimum amount of shelter.

All four of the articles are covered with nylon fabric. While specific information regarding the tensile strength or thickness of the nylon fabric used for the subject articles has not been provided, neither heading 6306, nor EN 63.06 (4), require that the material used to construct a tent conform to a predetermined thickness.

In HQ 962147, Customs determined that hunting or duck blinds, constructed of a lightweight synthetic (nylon) woven camouflage pattern fabric, hung over a pole frame made of steel or fiberglass, featuring openings on all four sides at shoulder height and in the roof, still constituted a tent. In HQ 089149, Customs held that a play tent was classifiable in subheading 6306.22.90, because the description of “tent” set forth in the ENs was broad enough to cover many types of tents, including play tents. Not unlike the tent in HQ 962147, the subject articles are constructed with nylon fabric treated to provide a minimum level of water repellant protection. Moreover, the specifications and literature you’ve provided both specify that these articles are intended for some outdoor use.

EN 63.06(4), does not require that tent fabric be “coated, covered, or laminated, or of canvas.” However, where all of the articles are in fact treated to be water repellant, their treatment reflects intended outdoor use.

The present articles are covered with brightly colored cloth, or as in the case of the house tent, a printed design on the exterior panels to appear like a small house. However, none of the heading, section, chapter notes, ENs, or Headquarters rulings suggest that the application of one design or color, even a military camouflage pattern, can substantively alter the nature of the article. Thus, whether an article is red, yellow, camouflage, or painted with a brick pattern does not alter the fact that it is still a tent.

The dome tent, the sun shelter and the house tent are held erect by a flexible frame or skeleton. Each frame is constructed of fiberglass poles resistant to the corrosive effects of continuous outdoor use. There is no apparent danger that the corrosive effects of oxidization or metal fatigue will occur even with extended exposure to outdoor use. This being noted, there are no requirements that a tent frame must be treated to prevent any particular degree of oxidization or corrosion.

In fact, there is no requirement that tent poles be capable of withstanding any particular degree of structural stress. Further, under EN 63.06(4), there is no requirement that a tent “be presented complete with their tent poles, tent pegs, guy ropes or other accessories.” The use of fiberglass poles as supports, does however, provide evidence that the structural frame can readily withstand moisture, moulding, and decay, and demonstrates an intention that the articles are intended to withstand some continued outdoor use.

The dome tent, the sun shelter and the house tent are all distinguishable from the “slipcover-like textile ‘play house,’” classified in subheading 9503.90.0030, HTSUS, (discussed in HQ 959998, dated August 17, 1997), and the “toy bed tent,” classified in subheading 9503.90.6000, (in HQ 954239, dated September 14, 1993). It should be noted for example, that unlike the present house tent, the slipcover-like textile “play house” in HQ 959998, had no structure unless the article was placed over a card or similar table.

In HQ 954239, the toy bed tent had elastic corners designed to fit a standard sized children’s bed mattress. The bed tent was also designed to function solely indoors. It was also made of a “flimsy” fabric, was not coated or treated to withstand even a light rain or shower, and had a porous roof. None of the subject articles mirror these features. Although the subject house tent also has four corners, they are made of nylon fabric and are designed to “fit to [the fiberglass] frame” and not to a child’s mattress. Moreover, unlike the present articles, the bed tent was not supported by an interlocking fiberglass pole frame with a sealed roof and securable tent flaps.

Having determined that the dome tent, the sun shelter, the tunnel, and the house tent are all covered by some flexible material, and are sustained by a durable frame/skeleton, it remains to determine whether they also provide a minimum amount of shelter.

The dome tent, the sun shelter, and the house tent provide ventilated and shaded enclosures, providing a child cover, whether on a beach or in the backyard. The dome tent and the house tent both have defined roofs, securable zippered tent flaps, and flexible weather resistant frames to protect their occupants in the event of a light shower, an errant garden hose, or hot sun at the beach. The sun shelter is open on three sides, but otherwise has these attributes. As indicated by EN 6306, the definition of tents is broad enough to include many types of tents, including those which are not per se, “shelters,” but which do provide protection against some elements. Customs has interpreted the term “tents” to include a variety of articles which are “shelters,” made of textile materials that form a protective enclosure and, therefore, fall within the class or kind of merchandise considered tent-like structures.

Further, the term “protection against the elements” has been interpreted by Customs to include protection from insects. This interpretation is consistent with the EN to heading 6306, HTSUS. See also HQ 959998, dated December 20, 1996, in which the following rulings discuss the classification of similar merchandise in heading 6306: HQ 956935, dated February 21, 1995, discussing the classification of a sleep screen; and HQ 083789, dated March 31, 1989; HQ 083683, dated March 30, 1989; HQ 084128, dated July 14, 1989; and HQ 084770, dated September 29, 1989, discussing the classification of screen houses. The fact that the tents discussed in HQ 959998 featured a pull down rainfly, an item prominently identified with securing tent flaps against very inclement weather, was determined not to contradict the principal use of the subject merchandise as a screen house. The absence or presence of a pull down rainfly per se, therefore, did not prevent Customs determination that the heavily exposed, meshed enclosure in HQ 959998 was classifiable as a tent. Consistent application of this determination leads us to conclude that the mesh vented segments included on the house tent do not negate the overall character of the article from being a tent. On the contrary, the presence of the mesh vents affords protection against additional elements including mosquitoes and other flying insects. They also provide some shade protection against the sun, while ensuring air circulation during a hot summer day. The fact that the subject articles may be zippered securely closed, but are not recommended as shelter against thunderstorms, does not negate their identities as tents or their ability to protect against some recognized elements.

In a telephone conversation with our office, your broker asserted that the subject articles are toy playhouses or slumber tents, which lack various structural features including floors, or any mechanism to secure the frames and shells to the ground, and thus, prevent the articles’ classification as tents. However, Customs has 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, nor does the heading require such. See EN 6306(4), and e.g., HQ 089149, and 950217.

Although substantially open on three sides, the sun shelter still provides a minimal amount of protection from some elements, including the hot sun. The intersecting fiberglass pole frames and rain repellant nylon roof, further secured at an apex with nylon straps attached to the top of the shelter’s canopy, provides a stability that, as you stated, enables the user to move the sun shelter and the other articles at will. The ease and versatility with which the sun shelter may be moved enhances the protection it offers from changing exposures to the sun and from directional winds throughout the day. We note that “beach use” is within the EN description of “tent.” Customs has classified cabanas within heading 6306, in HQ 089237 and HQ 953684.

Customs was informed, through statements made in conversations with your broker, that each of the subject articles is imported, packaged, shipped, and sold separately. Entered as singular or separate units, none of the present articles constitutes a “combined play environment,” as discussed in HQ 960123. According to Seneca Sports, Inc.’s broker, consumers may mix and match the articles, however, each article is distinct upon entry and packaged separately.

In the case of these three articles, it is our view that the parameters for classification in heading 6306, have been met for the following reasons:

The water repellant, nylon fabric construction is not flimsy. The articles are suitable and intended for some outdoor use;

The house and dome tents are designed with roll-up, zippered and securable front door flaps, rain repellant roofs. They and the sun shelter have flexible frames and are designed to provide some minimal protection against the elements of sun, sand, and a light breeze.

As we have concluded that the dome tent, the sun shelter and the house tent are classifiable in heading 6306, there is no need to discuss classification in heading 9503. See also, HQ 963574, dated September 24, 1999; HQ 087116, dated July 17, 1990, HQ 088644, dated June 13, 1994, and HQ 089149,dated July 30, 1991, affirmed in HQ 950217, dated December 19, 1991.

Heading 6306, specifically provides for tents. The tunnel described by the broker, appears to meet the general description of “tent” provided for in EN 63.06 and numerous heaquarters rulings. The tunnel is sustained by a frame/skeleton, is covered by flexible material, and provides a minimum amount of shelter. However, the tunnel is not used to provide even minimal shelter. It is circular and bends and rolls with the child as s/he crawls. For these reasons, we define the term “tent” for tariff purposes to exclude this circular tunnel. Thus, this tunnel is not classifiable in heading 6306, and we must determine whether it is classifiable in heading 9503.

Other than providing amusement for young children to crawl in and out of, the tunnel has no other apparent purpose. If it were sold with a tent, the tunnel could very well be classifiable under heading 6306, HTSUS, as Customs determined with a similar article, in HQ 963574, (9.24.99).

HOLDING:

The dome tent, the sun shelter and the house tent at issue are provided for under subheading 6306.22.9030, HTSUS, which provides for tents, of synthetic fibers, other. The tunnel is provided for under subheading 9503.90.0045, HTSUS, which provides for “Other toys and models,” as long as it is entered and sold separately. The quota category for the dome tent, the sun shelter and the house tent is category 669.

The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipments.”

Sincerely,

John Durant, Director Commercial Rulings Division

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