CLA-2 TC:RR:FC 959629 MMC
U.S. Customs
Port Director
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-95-102357; Beauty & the Beast playhouse, G.I.
Joe playhouse, Batman Slumber tent; Note 1(u) to Chapter 95; ENs
63.06; HRLs 089149, 950217, 087116, 088644, 086969, 086867,
085269, 084745, 084128 and 086548
Dear Port Director:
The following is our response to the application for further
review of Protest 2704-95-102357 concerning your actions in
classifying and assessing duty on playhouses and slumber tents,
under the Harmonized Tariff Schedule of the United States (HTS).
Literature containing pictures of the subject articles were
submitted for our review together with additional submissions
dated August 26, September 16, and October 26, 1996. A meeting
was held on January 23, 1997. Samples of a Batman and Buzz Light
Year vehicle tent were submitted and discussed at the meeting.
We note however, that the port report as well as the invoices
indicate that such a tent was not part of the protested entries.
Accordingly, its classification will not be addressed by this
decision.
FACTS:
Both the slumber and play tents consist of a 0.15 millimeter
thick polyvinyl chloride shell, polyvinyl poles which measure 1.3
millimeters in diameter and polyethylene connectors. We note
that the protestant indicates that newer versions of the tents
contain a cord which connects the plastic poles.
The playhouse tent's frame creates the typical peak
triangular tent frame except for the mid-section which is
squared. Because of this squaring, the frame appears to be a
"house" shape. When assembled the playhouse frame measures 44
inches high and creates a base which measures 44 inches long by
33 inches wide. The slumber tent poles assemble to form the
typical tent frame except instead of peaking in a triangular
form, they create an arch. When assembled, the slumber tent
measures 33 inches high and has the same base measurements as the
playhouse frame.
Construction of both tents is completed by placing a vinyl
shell over the frame. All of the shells are roller printed with
various children's images and contain a slit opening on one end
and a "window" on the other. Protestant notes that the shells do
not provide a floor, any mechanism by which any of its openings
may be closed nor is there any mechanism to secure the frame and
shell to the ground. Submitted literature indicates that "the
play house/slumber tent is not intended for camping usage or
extended outdoor use."
The protestant entered the plastic playhouse and slumber
tents in January of 1995, and was directed to classify them under
subheading 3926.90.9890, HTS, which provides for "Other articles
of plastics and articles of other materials of headings 3901 to
3914: Other: Other," dutiable at the column one rate of 5.3
percent ad valorem. Protestant asserts that the playhouse and
slumber tents are classifiable under subheading 9503.90.0030,
HTS, as "Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all kinds; and
accessories thereof : Other: Other toys (except models), not
having a spring mechanism," free of duty under column one. The
entries were liquidated on April 28, 1995. A protest was timely
filed on July 27, 1995.
ISSUE:
Whether the playhouse and slumber tents are considered
plastic tents or toys for tariff purposes.
LAW AND ANALYSIS:
Classification under the HTS is made in accordance with the
General Rules of Interpretation (GRI). The systematic detail of
the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, 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 GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTS by offering guidance in
understanding the scope of the headings and GRIs. Heading 3926,
HTS, provides for other plastic articles. Heading 9503, HTS,
provides for other toys. Note 1(u) to Chapter 95, HTS, states
that the chapter does not include "Racket strings, tents or other
camping
goods, or gloves (classified according to their constituent
material)." The general ENs for Chapter 95, HTS, state, in
pertinent part, that, "Apart 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 a
toy.
Heading 6306, HTS, provides for "Tarpaulins, Awnings and
Sunblinds; Tents; Sails for Boats, Sailboards, or Landcraft;
Camping Goods." EN 63.06 defines the term "tent" as:
* * * * *
(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.
The heading excludes umbrella tents of heading
66.01
(5) Camping goods. This group includes canvas buckets,
water bags, wash basins; ground-sheets; pneumatic
mattresses, pillows and cushions (other than those of
heading 40.16); hammocks (other than those of heading
56.08).
* * * *
In Headquarters Ruling Letter (HRL) 089149 dated July 30, 1991,
we held that a play tent was classifiable under subheading
6303.22.9030, HTS, as a tent because the definition of "tent" set
forth in the ENs was broad enough to cover many types of tents,
including play tents. See HRL 950217 dated December 19,1991,
affirming HRL 089149. See also: HRLs 087116 dated July 17, 1990;
088644 dated June 13, 1991; 086969 dated April 27, 1990; 086867
dated April 26, 1990; 085269 dated April 13, 1990; and 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. Like the aforecited
rulings, the present play and slumber tents fall within the EN
description of "tent" and are therefore according to Note 1(u) to
Chapter 95, HTS, excluded from classification as a toy.
Protestant asserts that the language of Note 1(u) to Chapter
95, HTS, which states in pertinent part, "...this Chapter also
excludes:...(c) Tents and camping goods (generally heading
63.06)...," indicates that the "tents" excluded from Chapter 95,
HTS, are limited to those with a textile constituent material.
We disagree. Because the language of the parenthetical reference
begins with the word generally, we do not find persuasive any
argument which suggests the extremely narrow intent to exclude
only textile tents from Chapter 95. Having consulted the ENs,
and construing the tariff as a whole, Note 1(u) to Chapter 95,
HTS, is not limited in scope to textile tents and thus may
exclude tents made of a variety of materials. See HRL 084128
dated July 14, 1989, which indicates that the EN 63.06 definition
of tent is very broad and includes a wide variety of structures.
Such structures include screen houses and dining canopies, but
they must be classified according to their constituent material.
See also, HRL 086548 dated April 12, 1990, indicating a car
shelter met the definition of "tent" and was classifiable
according to its constituent material.
According to Protestant, The Lexicon Webster Dictionary,
defines "tent" as "a portable shelter consisting of some flexible
covering, such as skins, matting or canvas, stretched and
sustained by poles." Protestant has suggested that EN 63.06 as
well as dictionary definitions of the term "tent" indicate that a
tent's constituent material must be "sturdy." However, there is
no reference to sturdiness in either the EN, or protestant cited
definition. Rather, the definitions, in particular the
dictionary definition, seem to indicate that flexibility and the
ability of a material to stretch are the necessary qualities of a
tent's constituent material. As the subject articles are vinyl,
which is both stretchy and flexible, its constituent material
does not exclude its classification as a tent.
Protestant suggests that the playhouses' and slumber tents'
lack of various structural features including a floor, any
mechanism by which any of its openings may be closed or any
mechanism to secure the frame and shell to the ground prevent the
articles' classification as tents. Customs has repeatedly 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. See HRLs 089149, 950217, 087116,
088644, 086969, 086867, 085269 and 084745. Additionally,
protestant asserts that the subject articles are not "tents"
because they fail to provide "shelter." We disagree. In HRL
088644 we indicated that a tent merely needs to be capable of
providing shelter. Submitted literature states that "the play
house/slumber tent is not intended for camping usage or extended
outdoor use." This indicates that the playhouses and slumber
tents are capable of short term outdoor use. The instant tents
are as capable of protecting their occupants from the sun, a rain
shower, and even light winds, as are the many other exemplars of
the Explanatory Notes. Therefore, the subject tents provide the
adequate amount of "shelter" for their intended purpose.
In conclusion, protestant suggests that the playhouses and
slumber tents are classifiable as a toy because they are designed
and manufactured to recreate for young persons a realistic play
situation and can be purchased in toy stores. Not every article
which provides amusement or "play situations" to children is
considered a toy for classification purposes. Note 1 to Chapter
95, HTS, lists several articles which might be considered toys ,
but which are excluded from Chapter 95, HTS. Children's tents
are an example. 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) relieves us of that dilemma. 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 meet the definition of tent
and therefore are, pursuant to Note 1(u) to Chapter 95, HTS,
excluded from classification in Chapter 95; regardless of their
claimed use.
HOLDING:
The protest should be DENIED. The subject playhouse and
slumber tents are classifiable under subheading 3926.90.9890,
HTS, which provides for "Other articles of plastics and articles
of other materials of headings 3901 to 3914: Other: Other" and
has a 1995 column one duty rate of 5.3 percent ad valorem.
In accordance with section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
Protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this decision, the Office of Regulations
and Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division