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HQ 963225




January 10, 2000

CLA-2 RR:CR:TE 963225 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

Mr. R.I. Hasson
Alba Wheels Up, Int’l, Inc.
150-30 132nd Avenue, Suite 208
Jamaica, NY 11434

RE: Request for reconsideration of NY D88800; classification of a sun shelter

Dear Mr. Hasson:

This is in response to your letter, on behalf of your client, Academy Broadway Corp., requesting reconsideration of New York Ruling Letter (NY) D88800, dated March 18, 1999, which classified among other things, a sun shelter made in Sri Lanka. Pursuant to the analysis which follows below, we are confirming the decision in NY D88800.

FACTS:

NY D88800 addressed the classification of both a sleeping bag and a sun shelter. Although you do not hold issue with the determination given for the sleeping bag, you claim that the classification of the sun shelter in subheading 6306.22.9030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in error. It is your belief that the sun shelter is more appropriately classified in subheading 6306.22.1000, HTSUSA, as a backpacking tent.

The sun shelter, referenced item number 10750, is an open half-dome shape shelter made of nylon woven fabric that has been coated with clear polyurethane which is not visible to the naked eye, and is designed to provide protection from the sun at the beach or in the backyard. It features a full size built-in nylon floor, two open mesh windows for ventilation and visibility, interior open mesh pockets and fiberglass shock-corded poles. It measures approximately 84 inches in width by 48 inches in depth by 50 inches in height. The tent weighs 3.2 pounds, and has a carry size of 8.5 inches by 19 inches, and a floor area of 28 square feet. When the shelter is not in use, it is stored in a zipper carrying case made of the same material.

ISSUE:

What is the appropriate classification for the subject merchandise?

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.

Heading 6306, HTSUS, provides for, among other things, tents. 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 manmade 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 neither be:

1. an enclosed structure (as for example, reference made to "marquees" in the EN to heading 6306, which are defined as “large opensided 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); nor

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 tentlike structure for protection from wind and sun on the beach or camping, in heading 6306).

Heading 6306, HTSUS, is broad enough to encompass a variety of tents, including those which provide only minimum protection from the elements. The one exception occurs in the case of backpacking tents which are specifically provided for under heading 6306.22.1000, HTSUSA. In The Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976), the court held that backpacking was recognized as a “sport.” The court went on to say that “...backpacking is the activity of traveling on foot in relatively wild areas and maintaining oneself with supplies and equipment carried on one’s back. This activity falls within my understanding of the term “sport.” It possesses to a meaningful degree the same attributes of healthy, challenging and skillful recreation which characterize such acknowledged sports as scuba diving, skiing, horseback riding and mountain climbing.”

In T.D. 86-163, Customs revised previously issued guidelines concerning the classification of backpacking tents to incorporate the court’s decision. Therein Customs noted that the only sensible method of determining a tent’s eligibility for classification as a backpacking tent was by quantifying its size and weight. Therefore to qualify as sports equipment the following criteria had to be met:

1. It must be specifically designed for the sport of backpacking;

2. It must be composed of nylon, polyester, or any other fabric of man-made fibers;

3. If designed for 1 or 2 persons, the tent must meet the following criteria:
a. Have a floor area of 45 square feet or less; and b. Weigh 8-1/2 pounds or less, including tent bag and all accessories necessary to pitch the tent; and c. Have a carry size of 30 inches or less in length and 9 inches or less in diameter. If other than cylindrical in shape, the tent package must not exceed 1, 900 cubic inches.

Although the subject tent is made of nylon woven fabric, has a floor area which is less than 45 square feet, weighs less than 8-1/2 pounds, and has a carry size of less than 30 inches in length and less than 9 inches in diameter (therefore meeting criteria 2 and 3), it fails to meet the first criteria, that is, that the tent be specifically designed for the sport of backpacking. It is evident that the subject merchandise is not designed for the sport of backpacking, as the sport is intended by the court. The subject tent would be inadequate for use in wild areas or any type of “challenging and skillful recreation.” The subject tent is instead appropriate for lounging/relaxing in one’s backyard or on a beach where protection from the elements (beyond offering some shade) is neither expected nor required.

Accordingly, the subject merchandise is appropriately classified in subheading 6306.22.9030, HTSUSA. See also, Headquarter Ruling Letter (HQ) 087116, dated July 17, 1990, HQ 955304, dated March 11, 1994, HQ 089237, dated May 10, 1991, and HQ 953684, dated April 26, 1993, wherein Customs precluded the classification of similar merchandise in the provision for backpacking tents and instead classified the merchandise in subheading 6306.22.9030, HTSUSA.

HOLDING:

NY D88800 is affirmed.

The subject sun shelter, item number 10750, is classified in subheading 6306.22.9030, HTSUSA, which provides for, tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: tents: of synthetic fibers: other: other. The applicable general column one rate of duty is 9.4 percent ad valorem and the textile quota category is 669.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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