CLA-2 CO:R:C:T 955304 BC
District Director of Customs
U.S. Customs Service
P.O. Box 4688
Portland, ME 04112
RE: Internal Advice Request 82/93; classification of a nylon
outdoor shelter; Sunbuster Shelter; beach shelter; wind and sun
protector; tent; backpacking tent
Dear Sir:
This responds to your internal advice request, designated
I/A 82/93, dated October 12, 1993. It was based on a letter from
SULLIVAN & LYNCH, P.C., dated October 5, 1993, which requested
internal advice, under section 177.11(b)(2) of the Customs
Regulations, concerning the classification of the "Sunbuster
Shelter" imported by its client (the importer). We have reviewed
the matter and our decision follows.
FACTS:
The merchandise at issue is called the "Sunbuster Shelter."
According to information submitted with the internal advice
request, it is a nylon (woven fabric) shelter that offers
protection from the wind and the sun at picnic areas and the
beach. It is dome shaped, with three sides and a floor. It is
open on one side, permitting entry and exit and allowing a view
of surroundings while inside. When set up, the shelter measures
52 inches by 108 inches by 48 inches. The floor area is 26
square feet. When disassembled and placed in a carrying case, it
measures 4 inches by 28 inches.
According to a copy of an entry summary submitted with the
request, 1,350 units of the Sunbuster Shelter were entered on
July 19, 1993, under subheading 6306.22.1000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), which provides
for backpacking tents of synthetic fibers, dutiable at a rate of
4.64% ad valorem. Subsequent to entry, Customs at Portland,
Maine, issued to the importer a Notice to Redeliver the shelters,
on the grounds that they were incorrectly classified. The notice
informed the importer that the shelters should be classified
under subheading 6306.22.9030, HTSUSA, which provides for other
than backpacking (and certain other described) tents, dutiable at
a rate of 10% ad valorem and subject to quota category 669.
The importer, through counsel, contends that the shelters
are classifiable under subheading 6307.90.9986, HTSUSA, as other
made up articles of textile, or, alternatively, under the
subheading pertaining to backpacking tents, as above. You
submitted the instant internal advice request for a Headquarters
decision on this question.
ISSUE:
Is the nylon beach (wind and sun) shelter at issue,
described as the "Sunbuster Shelter," classifiable as a
backpacking tent under subheading 6306.22.1000, HTSUSA, a tent
other than a backpacking tent under subheading 6306.22.9030,
HTSUSA, or an other made-up article of textile materials under
subheading 6307.90.9986, HTSUSA?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States (HTSUS) is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification is
determined in accordance with the terms of the headings and any
relative section or chapter notes. Where goods cannot be
classified solely on the basis of GRI 1, the remaining rules will
be applied in sequential order.
The Explanatory Notes (EN's) of the Harmonized Commodity
Description and Coding System 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. In
Treasury Decision (T.D.) 89-80, Customs stated that the EN's
should always be consulted as guidance when classifying
merchandise. (See T.D. 89-80, quoting from a report of the Joint
Committee on the Omnibus Trade and Competitiveness Act of 1988,
endorsing use of the EN's in the classification of goods. 23
Cust. Bull. 379 (1989), 54 Fed. Reg. 35,127 (August 23, 1989).)
(See also Totes, Inc. v. United States, No. 91-09-00714, slip op.
92-153 (CIT September 4, 1992), 26 Cust. Bull. No. 40, 35, 37 n.
3 (September 30, 1992), citing T.D. 89-80 and acknowledging the
authority of the EN's.) The EN's for heading 63.06 provide the
following regarding tents:
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.
The importer's first argument is that the shelter at issue
is not a tent because it has only three sides and does not form
an enclosure. Thus, the shelter should be classified under
subheading 6307.90.9986, HTSUSA, as an other made-up article of
textile materials.
The fact that the shelters at issue are open on one side is
not controlling. The EN first sets forth that tents are
shelters. The definition of "shelter" is as follows: 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).
Clearly, shelters are not limited to closed structures. Also,
one of the EN's examples of tents covered by heading 6306,
HTSUSA, is "marquees." These are defined as follows: 1. A large
open-sided tent, used chiefly for outdoor entertainment. Id. at
728. Thus, an open-sided shelter is considered a tent for tariff
purposes. These terms ("shelter" and "marquees") show that tents
of the heading are not limited to completely enclosed structures.
Further, in describing the tent as an enclosure, the EN uses the
non-exclusive qualifying term "usually." This means "not in all
cases," which again indicates that tents of the heading are not
limited to the enclosed type.
Our belief that tents of heading 6306, HTSUSA, include open
shelters in addition to closed shelters is further supported in
the EN's. The EN quoted above continues as follows:
Caravan "awnings" . . . 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.
Caravan awnings are described as having only three sides (walls);
yet, they are considered tents within the meaning of heading
6306, HTSUSA. If caravan awnings with three sides are tents,
then there is no reason to exclude the shelters at issue from
classification as tents on the grounds they have only three
sides.
There is precedent for the position that sun and wind
shelters are classifiable as tents. In Headquarters Ruling
Letter (HRL) 951774, dated May 28, 1992, we stated the following
regarding a sun/windscreen shelter: "In Customs view, the
sun/windscreen shelter in question is a class or kind of
merchandise similar to a tent or tent-like structure and is
classifiable in heading 6306." For similar holdings, see HRL's:
953684 (April 26, 1993), concerning a cabana; 951814 (September
8, 1992), concerning a tent-like structure for protection from
wind and sun on the beach or camping; and 089237 (May 10, 1991),
concerning a beach cabana. Note also that among the EN's
examples of tents covered by heading 6306, HTSUSA, are those for
beach use.
The importer's second argument is that if the shelter is
classifiable as a tent, it is a backpacking tent classifiable
under subheading 6306.22.1000, HTSUSA. We do not agree. The
shelter at issue is designed for use at the beach. Its purpose
is to protect occupants from the wind and sun. It could be used
for this purpose at picnics or in the backyard. (The catalogue
wherein the shelter is advertised describes the shelter as
offering protection from wind and sun at picnic areas or the
beach, and the accompanying photograph shows a woman and children
with the shelter on the beach.) It is not the kind of tent used
for backpacking purposes. Such tents are designed to be used in
the sport of backpacking, where participants hike long distances
and survive against the elements by utilizing only those supplies
they carry on their backs. (See The Newman Importing Co., Inc.
v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976).)
Backpacking tents must be designed to stand up to the occasional
severe weather that backpackers face. An open-sided shelter
would not fulfill that purpose.
Finally, the importer asserts that the shelter at issue
meets the guidelines for backpacking tents set forth in Treasury
Decision (T.D.) 86-163, 20 Cust. Bull. 468, 470 (1986). First,
meeting these guidelines does not necessarily ensure
classification as a backpacking tent. Second, the shelter at
issue does not meet the first requirement under the guidelines:
"It [the tent] must be specially designed for the sport of
backpacking." As above, the shelter at issue was not designed
for backpacking.
Based on the foregoing, we conclude that Customs
classification of the shelters under subheading 6306.22.9030,
HTSUSA, was correct.
HOLDING:
The three-sided beach (sun and wind) shelter at issue is
classifiable under subheading 6306.22.9030, HTSUSA, as an other
tent of synthetic fibers. The applicable duty rate is 10% ad
valorem; the quota category is 669.
Sincerely,
John Durant, Director
Commercial Rulings Division