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HQ 964897

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August 13, 2002

CLA-2 RR:CR:GC 964897 DBS

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 9503.90.00

Ms. Susan D. Klingbeil
IKEA Wholesale U.S. Inc.
496 West Germantown Pike
Plymouth Meeting, PA 19462

RE: Children’s play tents; Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000); Country of Origin

Dear Ms. Klingbeil:

On March 29, 2000, this office issued to you Headquarters Ruling (HQ) 962983, classifying a cave tent, circus tent, dome tent, tunnel tent and tunnel, as tents of synthetic fibers in subheading 6306.22.90, Harmonized Tariff Schedule of the United States (HTSUS). Later that year, you submitted a country of origin marking request for the circus tent, which was resubmitted in January 2001 to the National Import Specialist Division, New York. In light of the decision by the United States Court of International Trade in Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000) (hereinafter Ero), rulings classifying certain similar play tents are revoked by operation of law. As the classification of the circus tent effects the country of origin marking, your request was forwarded to this office for reply. We regret the delay. We will take this opportunity to set forth our interpretation of the Ero decision.

FACTS:

In HQ 962983, Customs classified five play tents in subheading 6306.22.90, HTSUS, which provides for tents, of synthetic fibers, other. On October 19, 2000, the court issued the Ero decision, classifying certain plastic play tents in subheading 9503.90.00, HTSUS. The tents at issue in HQ 962983 are as follows:

Murmel Cave tent, item # 972 238 95 (“cave tent”); Murmel Circus tent, item # 172 237 95 (“circus tent”); Murmel Children’s tent, item # 100 114 18 (“dome tent”); Murmel Tunnel tent, item # 572 235 95 (“tunnel tent”); and Murmel Tunnel, item # 772 239 95 (“tunnel”).

The merchandise is described as “children’s play tents.” IKEA states that its articles are “designed for indoor use.” All five articles are enclosures composed of water repellant treated, colored nylon fabric. They are all supported by shock-cord fiberglass poles and outfitted with floors made of waterproofed or water repellant nylon fabric. The fiberglass poles for each of these articles are inserted into covered seams of nylon fabric sewn onto the sides or roof of each article with reinforced stitching. The tip at both ends of each pole exits at the end of each seam. The pole tips are either inserted into a form-fitted plastic end piece attached to the fabric covering by a nylon web loop, or into a nylon hook and loop corner located on the exterior of the covering, at the base of the article.

The cave tent weighs approximately 3 pounds with a floor area of 13.73 square feet. The entrance/exit opening is a square aperture at one end covered by a water repellant, double-ply, nylon fabric flap. The flap may be rolled up and secured open or closed and substantially secured by hook and loop patches. The tent is solid black and the flap has a pattern of vertical black and white stripes.

The circus tent weighs approximately 5.5 pounds with a floor area of 18.01 square feet, measuring 57.4 inches by 65 inches. It has two openings, both of which may be covered by a water repellant nylon fabric flap sewn at the top of the opening. The flap may be secured open by two nylon fabric straps tipped with hook and loop attachments, or closed by hook and loop patches. The tent emulates a big top circus tent. It is a round, yellow and red polka-dotted tent with a royal blue, pointed roof, and red flags around the circumference of the base of the roof. On one side of the circus tent roof there is a vented circle of mesh fabric 4.5 inches in diameter.

The dome tent weighs approximately 2.25 pounds with a floor area of 19.62 square feet. It has three openings. There is a zippered slit opening at the center of the front panel. The zipper extends from the top of the front panel to the ground securing both flaps of the front panel closed. The closed front flap may be further secured to the base of the dome tent by hook and loop patches. The second opening is circular, and may be held open or closed by securing the nylon fabric flap with nylon strips and hook and loop patches. The third opening is located on the tent panel to the left of the zippered opening. This opening is also circular in shape, and may be covered with a nylon fabric flap. The tent is constructed of brightly colored cloth.

The tunnel tent weighs approximately 2.5 pounds with a floor area of 8.5 square feet. It measures approximately 41 inches long by 23.5 inches wide by 28 inches high. There are four openings. Slit openings are located at each of the two tunnel tent ends and half-moon/semi-circle openings are located on each of the two sides. All of the openings may be secured closed by nylon fabric flaps outfitted with hook and loop attachments. The side flaps may be secured open by rolling them up and securing them above the openings by two nylon fabric straps tipped with hook and loop attachments. The tent is constructed of brightly colored cloth.

The tunnel weighs approximately 2.4 pounds and is approximately 78 inches long by 23 inches wide by 27 inches high. In addition to the fiberglass poles used to construct and support the tunnel frame, the tunnel base has four fiberglass poles or rods sewn into the fore and aft sections of its floor covering. Neither of the two ends of the tunnel are covered, nor can they be secured closed. With the exception of reinforced hook and loop nylon squares to secure the fiberglass frame poles, there are no additional hook and loop attachments located on the tunnel. The tunnel is added to the opening of a tent, such as the circus tent. It, too, is constructed of brightly colored polka-dotted cloth.

ISSUE:

1. Whether the subject children’s play tents are classifiable as toys in subheading 9503.90.00, HTSUS, in light of the Court of International Trade’s decision in Ero Industries, Inc. v. United States.

2. What is the country of origin for the circus tent?

LAW AND ANALYSIS:

1. Classification

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

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

Of synthetic fibers:

6306.22.90 Other

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 Ero decision held that certain play tents were classifiable as toys of heading 9503.90.00, HTSUS. The merchandise at issue was various tent-like articles of vinyl, with a supporting framework of interconnected elastic-corded PVC poles and connectors. On the exterior they had colorfully imprinted licensed copyrighted and trademarked graphics depicting various fictional children's characters and images. The articles were described as playhouses, play tents and vehicle tents. For our purposes, we will discuss the court’s decision with respect to the play tents, though the holding covered all of the products.

The term "toy" is not defined in the HTSUS. However, the general EN for Chapter 95, HTSUS, states that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults." The court construes heading 9503 as a "principal use" provision, insofar as it pertains to "toys." See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000). Thus, to be a toy, the "character of amusement involved [is] that derived from an item which is essentially a plaything." Wilson's Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967).

The Ero court construed “tents” as being temporary structures used for protection against the elements. See id. at 1364. Tents of heading 6306, HTSUS, as stated in the ENs, are shelters. See also HQ 962147, dated April 6, 1999 (stating that shelters are temporary structures that provides minimal threshold for protection against the elements). EN 63.03 provides, in part, that the heading covers “tents of various sizes and shapes, e.g., marquees and tents for military, camping (including backpacking tents), circus, beach use.” The heading also covers caravan “awnings,” which are “tent-like structures[that] consist of three walls and a roof and are designed to augment the living space provided by the caravan.” In HQ 962147, we stated that a tent of heading 6306, HTSUS, need not be fully enclosed and need not protect against extremes in weather.

As the court stated in Ero, the types of tents prima facie excluded from Chapter 95 are camping tents by Chapter Note 1(u). See Ero, 118 F. Supp. 2d at 1364-65. Today’s camping tents are designed with large mesh windows, generally between two and four, for maximum ventilation and for protection from insects. The windows can be covered by tarp-like shields, which attach to the ground. When attached, the shields cover the roof and create an overhang over side windows, for protection with ventilation. The doors of the tents are secured closed by zippers, and generally have mesh coverings. Many tents have specially sealed floor seams, storm flaps and polyurethane coating or other protective coatings to block out water.

Play tents, by definition, are for play. That is, they are toys. The court stated, “It is beyond peradventure that young children derive "amusement" not only from the stimulation of their imagination by the fictitious children's characters and images imprinted on the imports, but also from the function of the imports to enclose the child while "playing fort," "playing house," playing "hide-and-seek," and pretending to maneuver a spaceship, a car, etc.” 118 F. Supp 2d at 1360. However, structurally, play tents are tents of a sort. "When amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement." Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977).

The Ero court employed this maxim to determine whether the principal use of the merchandise at issue was as play tents (i.e., toys) or as tents. To determine whether utility or amusement prevailed, the court looked at the construction of the play tents, the marketing, size, design, ability to offer protection against the elements and use. The court found that the play tents were not practical as tents or shelters. See Ero, 118 F. Supp 2d at 1357. This is due, in part, because they were not designed or constructed for protection against the elements. See id. at 1364.

The court concluded that the utility of the merchandise before it was incidental to the amusement value of the play environment it provided, and the principal use was not as shelters, but as toys. Further, as the imports were not designed for attachment to the ground, and they were not used for camping, they were not excluded by the terms of Note 1(u), chapter 95, HTSUS. Accordingly, the play tents were classifiable in heading 9503, HTSUS.

The issue here is whether the instant tents, in light of the Ero decision, are classifiable as toys of subheading 9503.90.00, HTSUS. The Ero opinion demonstrates that we must consider many factors, such as whether the article’s shape, theme, décor, etc., create a play environment, whether it is constructed to protect against the elements (e.g., waterproofing and structural integrity), whether it can be attached to the ground, whether it is marketed for indoor use, and whether it is marketed for use in camping.

With respect to play, the theme of a big top circus tent fosters a play environment and stimulates imagination as did the theme of licensed characters on the Ero play tents. The shape of the tunnel, at just over 2 feet in height, similarly creates a play environment for activities involving crawling or hiding. The dome and tunnel tents provide per se entertainment not only because of the sense of enclosure, but because the numerous openings create a jungle gym-like environment. In sum, the play fostered by the design of these tents provides children with “enormous amusement value in certain play activities,” Id. at 1362.

With respect to utility as a tent, all five articles are made of waterproof material and would provide a minimal amount of protection from water, such as an errant sprinkler or garden hose, and would provide some shade from the sun. With the flaps closed, they provide some protection from insects, though there is no mesh covering the openings, and the hook and loop patches secure that flaps down, do not seal the tent closed as zippers do. Further, whereas tents of heading 6306, HTSUS, are designed to be secured to the ground, none of the instant articles is. A gust of wind could cause the tents to capsize or blow away defeating any shelter it may provide. The merchandise does not provide much shelter, as defined for purposes of tariff classification, supra at 4.

Further, the marketing of these articles suggests that they are intended for (predominantly) indoor use for amusement, not shelter. The Ero court stated that the advertising, “great for indoor and outdoor fun,” strongly suggested “cognitive amusement rather than somnolence or napping.” Id at 1363. Similarly, IKEA advertises that the series of Murmel play tents “brings the playground inside to your children.”

Moreover, the instant articles are not similar to the camping tents described above, supra at 5. They cannot be secured to the ground, and without zippered openings, mesh-covered windows for ventilation and protection from insects, or little to no sealing or coating, do not provide a minimum threshold of protection against the elements as camping requires. Therefore, they would not be classifiable as camping tents.

While the size of the play tents in Ero are not determinative (45 in.(L) x 33 in.(W) x 33 in.(H)), we note that the circus tent and dome tent are larger than the play tents at issue in Ero, the cave tent is close to the same size, and the tunnel tent and tunnel are smaller, but none would accommodate children for sleeping. Given the lack of protection from the elements, the play environment fostered by the design and advertising, and the size, we find the principal use of each of the five articles is for playing or amusement. Therefore, they are specifically described as toys, and classifiable according to GRI 1 in heading 9503, HTSUS.

We note that although the ENs for heading 6306 refer to circus tents of various sizes, the language used, “tents for military, camping (including backpacking tents), circus, beach use” denotes tents used for a circus, as opposed to structures that look like circus tents. The instant “circus tent” is not a tent used for a circus; it is a play tent simulating the appearance of a big top circus tent. It is not covered by the circus tent reference in the EN.

In HSC 28 in November 2001 (Annex M/9 to Doc. NC0510B2), the Harmonized System Committee (HSC) of the World Customs Organization (WCO) determined the classification of similar play tents to be in heading 9503. Classification opinions of the HSC may provide assistance in the understanding of the international agreement, the Harmonized System, on which the HTSUS is based. Also in that session, the HSC amended the ENs. EN 63.06 now includes the following exclusionary note: (c) Play tents used by children indoors or outdoors (heading 95.03). EN 95.03 now includes the following item: (22) Play tents for use by children indoors or outdoors. The HSC decision and the amendments to the ENs are consistent with Ero, and with our decision here.

Accordingly, the five instant articles are classifiable as toys of subheading 9503.90.00, HTSUS. As a result of the Ero decision, HQ 962983 and the ruling letters listed below are revoked or modified by operation of law. Questions regarding the classification of similar merchandise intended for importation into the United States should be directed to the National Commodity Specialist Division, One Penn Plaza, 10th Floor, New York, New York 10119.

While we are not required to provide this information, the following ruling letters are revoked by operation of law pursuant to Ero:

HQ 963018, dated April 18, 2000
HQ 963765, dated April 15, 2000
HQ 963760, dated April 15, 2000
HQ 963779, dated March 31, 2000
HQ 963702, dated March 23, 2000
HQ 963574, dated September 24, 1999
HQ 961060, dated April 14, 1998
HQ 959629, dated April 17, 1997
HQ 960098, dated November 31, 1997
HQ 088644, dated June 13, 1991
HQ 089149, dated July 30, 1991
HQ 950217, dated December 19, 1991
NY D87416, dated February 11, 1999
NY C85406, dated April 18, 1998
NY 812399, dated August 3, 1995
NY 814712, dated September 18, 1995
NY 879988, dated November 18, 1992

The following ruling letters are modified pursuant to Ero:

HQ 959499, dated September 12, 1996, as to the Ball Pit and the Animal, but not as to the Play Pen, Baby Tent or Baby Cabana. HQ 962984, dated March 23, 2000, as to the dome tent (item # not provided), the house-style tent (item # not provided) and the tunnel (item # 31530), but not as to the sun shelter (item # 31540). NY A88249, dated October 17, 1996, as to the Tunnel Hut 4, Play Through, Action Figure Tent and Doll Playhouse, but not as to the Baby Hut. NY F89381, dated July 27, 2000, as to the Hollywood Home (item #2081) and Hollywood Garage with Tunnel (item # 2082).

2. Country of Origin Marking of Circus Tent, Item # 172 237 95

General Marking Requirements

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. 19 CFR part 134 implements the country of origin marking requirements of 19 U.S.C. § 1304.

Section 134.1(d), Customs Regulations (19 CFR § 134.1(d)), provides that the “ultimate purchaser” is generally the last person in the United States who will receive the article in the form in which it was imported. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of the purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Country of Origin

The non-preferential rules of origin, as in this case, employ the “substantial transformation” criterion for goods that consist in whole or in part of materials from more than one country. An article that consists in whole or in part of materials from more than one country is a product of the last country in which it has been substantially transformed into a new and different article of commerce with a name, character, and use distinct from that of the article or articles from which it was so transformed. See United States v. Gibson-Thomsen, 27 C.C.P.A. 267 (1940); Uniroyal Inc. v. United States, 542 F. Supp. 1026 (Ct. Int’l Trade 1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983); Koru North America v. United States, 701 F. Supp. 229 (Ct. Int’l Trade 1988); National Juice Products Ass’n v. United States, 628 F. Supp 978 (Ct. Int’l Trade 1986); Coastal States Marketing Inc. v. United States, 646 F. Supp 255 (Ct. Int’l Trade 1986), aff’d, 818 F.2d 860 (Fed. Cir. 1987); Ferrostaal Metals Corp. v. United States, 664 F. Supp 535 (Ct. Int’l Trade 1987).

In Belcrest Linens v. United States, 573 F. Supp. 1149 (Ct. Int’l Trade 1983), the subject merchandise underwent a process that changed its character from a bolt of woven fabric to a pillowcase in Hong Kong. The woven pieces from China were 40” wide and marked for cutting. The court determined that the cutting at predetermined lengths, scalloping the border, hemming and sewing along the edges of the woven pieces, “caused a change in the character and identity . . . into an articles designed specifically for the purpose of enclosing a pillow.” Id. at 1153.

Here, the subject merchandise consists of various synthetic fabrics and other components, such as poles and rods, from Korea, China and Taiwan imported into Bangladesh. Sewing thread and packing materials are from Bangladesh. The Multiple Country Declaration submitted with the ruling request denotes that cutting, sewing and packing of the materials occurs in Bangladesh. Assuming the fabrics are imported to Bangladesh in rolls, the cutting and sewing the various fabrics and assembling of the poles and rods cause a change in the characters and identities, of the various materials into a circus-type play tent, designed for the purpose of providing a play environment for children, just as did the cutting, hemming and sewing of the woven fabric into pillowcases in Belcrest Linens. Accordingly, the foreign materials (non-Bangladesh) underwent substantial transformation. Therefore, the country of origin for marking purposes is Bangladesh.

Marking Requirements

As for marking requirements, Section 134.43(e), Customs Regulations (19 CFR § 134.43(e)), states in pertinent part that:

Where an article is produced as a result of an assembly operation and the country of origin of such article is determined under this chapter to be the country in which the article was finally assembled, such article shall be marked, as appropriate, in a manner such as the following: (1) Assembled in (country of final assembly); (2) Assembled in (country of final assembly) from components of (name of country or countries of origin of all components); or (3) Made in, or product of, (country of final assembly).

The instant merchandise should be marked accordingly.

HOLDING:

The Murmel Cave tent, item # 972 238 95 (“cave tent”); the Murmel Circus tent, item # 172 237 95 (“circus tent”); the Murmel Children’s tent, item # 100 114 18 (“dome tent”); the Murmel Tunnel tent, item # 572 235 95 (“tunnel tent”); and the Murmel Tunnel, item # 772 239 95 (“tunnel”) are classifiable in subheading 9503.90.00, 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.”

The country of origin for marking purposes is Bangladesh.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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See also:

• Tariff No.: 6306.22.90 - Tents other than backpacking tents, of synthetic fibers
• Tariff No.: 9503.90.00 - Toys and reduced scale models neosi and parts and accessories thereof