CLA-2 RR:CR:TE 962408 jb
Ms. Saralee Antrim-Saizan
Carmichael International Service
533 Glendale Boulevard
Los Angeles, CA 90026-5097
RE: Classification of a "Slumber Hut"
Dear Ms. Antrim-Saizan:
This is in response to your letter, dated January 28, 1998,
on behalf of your client, PlayHut, Inc., wherein you request a
classification determination under the Harmonized Tariff Schedule
of the United States (HTSUS), for what you refer to as a "Slumber
Hut". A sample was submitted to this office and will be returned
under separate cover.
FACTS:
The submitted merchandise, referenced style number 71761,
the "Slumber Hut", measures approximately 72"X36"X40" and is
designed to fit over a standard twin size mattress. It is
specially equipped with four elasticized straps at each corner to
facilitate attachment of the play tent to a mattress. When the
fabric for this merchandise was examined by the Customs
Laboratory, their analysis indicated that the fabric for this
merchandise weighs approximately 79.1 g/mý, and is composed of
100 percent filament nylon plain woven fabric with a light
coating of clear plastic which is not visible to the naked eye.
Flexible steel spring loops have been sewn into the edges of this
merchandise, providing both structural support and a mechanism by
which the Slumber Hut is erected. Because of the steel spring
supporting members which enable the structure to spring back and
forth from its original shape, this type of product is referred
to as a "pop-up" structure. The Slumber Hut features steel
spring supports which can be twisted into loops which collapse
the structure into a flat shape, and facilitate its storage in a
carrying bag for easy transport. The Slumber Hut may also be
erected on the floor and comes equipped with a fabric tunnel
which provides additional play value to the play enclosure. The
Slumber Hut contains several knit man-made fiber mesh panels
toward the top of the structure which provide both an opening
from which children can view out and light can come in.
The literature you have submitted with the sample indicates
that this product is for indoor use and that it may be joined
with other play structures for additional play activities.
ISSUE:
Whether the subject merchandise is properly classified in
heading 6306, HTSUS, which provides for, among other things,
tents, or heading 9503, HTSUS, which provides for, among other
things, other toys?
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.
There are two competing provisions with respect to the
classification of this merchandise: heading 6306, HTSUS, which
among other things, provides for tents, and heading 9503, HTSUS,
which among other things, provides for other toys. Each of
these provisions also has an exclusionary legal note. Note 1(t)
to Section XI, HTSUS, states that, this section does not cover
"Articles of chapter 95 (for example, toys, games, sports
requisites and nets)." Similarly, Note 1(u) to chapter 95,
HTSUS, states that, this chapter does not cover "Racket strings,
tents or other camping goods, or gloves (classified according to
their constituent material)."
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 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.
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 not be:
1. an enclosed structure (as for example, reference made
to "marquees" in the EN to heading 6306, which are
defined as "large
open-sided 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);
or
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 tent-like structure for
protection from wind and sun on the beach or camping,
in heading 6306).
Although the tariff for heading 6306, HTSUS, never speaks to
the extent of this protection, as the long line of rulings on
this topic clearly show, what is required is minimal protection
from the elements. In the case of the subject merchandise the
fabric construction for these play tents preclude its
classification in heading 6306, HTSUS, for the following reasons:
1. The fabric is of flimsy construction and would not be
suitable or appropriate for outdoor use;
2. The openwork windows, which are not designed with any
rain flaps, would expose the whole enclosure to wind,
sun and rain.
Additionally, we note that although there is no mechanism by
which this tent can be anchored to the ground to secure its
position, this merchandise does feature something very
particular, that is, four elasticized straps at each corner to
facilitate its attachment to a mattress. Certainly, these added
features are a clear indication that this merchandise is intended
for use in an indoor, rather than an outdoor, environment.
Chapter 95, HTSUS, provides for, among other things, toys.
Although the term "toy" is not defined in the tariff, the EN to
chapter 95, HTSUS, state, in pertinent part, that "[t]his Chapter
covers toys of all kinds whether designed for the amusement of
children or adults." Although not set forth as a definition of
"toys", this term has been interpreted by Customs as equating
"toys" with articles "designed for the amusement of children and
adults." Such design for the amusement of children or adults
must be corroborated by evidence of the article's principal use.
In Headquarters Ruling Letter (HQ) 960123, dated November 3,
1997, Customs classified similar merchandise in chapter 95,
HTSUS. The merchandise therein consisted of two cube- shaped
components, two tunnel shaped components and a house-shaped
component. All components were attachable to one another and had
openings to facilitate a child being able to climb in and out
from one component to another. Because the articles were
attached together and formed a myriad of areas for children to
explore, Customs determined that the article was principally
designed to amuse. We believe the same logic applies to the
subject merchandise. That the subject merchandise is designed
principally for indoor use is clear by the presence of the four
elasticized corners which help to secure this article to a
mattress. In addition, this article comes equipped with a fabric
tunnel which provides additional play value. As such, this
merchandise is similarly classified in chapter 95, HTSUS.
Based on the foregoing, we conclude that the subject
merchandise is properly classified in heading 9503, HTSUS, which
provides for, among other things, other toys.
HOLDING:
The subject merchandise is properly classified in subheading
9503.90.0045, 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:
other toys and models." The applicable general column one rate
of duty is "Free".
Sincerely,
John Durant, Director
Commercial Rulings Division