CLA-2 RR:CR:GC 962983 BJB
Ms. Susan D. Klingbeil
IKEA Wholesale U.S. Inc.
496 West Germantown Pike
Plymouth Meeting, PA 19462
RE: Cave tent, tunnel tent, tunnel, children’s tent, circus tent; headings 6306 and 9503, HTSUS; EN 63.06; Note 1(u) to Chapter 95.
Dear Ms. Klingbeil:
This is in response to your letter of May 5, 1999, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of children’s play tents pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for response. We regret the delay in responding.
FACTS:
You have submitted samples and pictures of the following:
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.” All five articles enclosures covered with 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 dome tent covering is further supported by two nylon fabric laces, sewn to the top of the covering, and tied to the apex of the intersecting poles. The circus tent has four additional fiberglass rods sewn into its cone shaped roof to support its shape.
The cave tent weighs approximately 3 pounds with a floor area of 13.73 square feet. The circus tent weighs approximately 5.5 pounds with a floor area of 18.01 square feet. The dome tent weighs approximately 2.25 pounds with a floor area of 19.62 square feet. The tunnel tent weighs approximately 2.5 pounds with a floor area of 8.5 square feet. The tunnel weighs approximately 2.4 pounds with a floor area of 12.72 square feet.
The cave tent has one opening at one end of the article. The entrance/exit opening is a square aperture covered by a water repellant, double-ply, nylon fabric flap. The flap may be rolled up and secured open by matching hook and loop squares located above the opening which adhere to those located on the lower edge of the flap. The flap may be closed and substantially secured by additional hook and loop patches located on the right and left sides of the opening with corresponding patches located on the inside edges of the flap.
The circus tent has two openings. Both openings are equal in size and may be used as an entrance or exit. Both openings may be covered by a water repellant nylon fabric flap sewn at the top of the opening. The flap may be secured open by rolling it up and securing it above the opening by two nylon fabric straps tipped with hook and loop attachments. On one side of the circus tent roof there is a vented circle of mesh fabric 4.5 inches in diameter.
The dome tent has three openings. There is a zippered slit opening at the center of the front panel. This panel is divided to form a right and a left flap by use of a double-sided zipper. 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 located along the baseline of the front of the tent and along the inside base edge of these flaps. The second opening is located on the opposite side of the tent from the zippered slit opening. This opening is circular in shape and may also be covered with a nylon fabric flap secured shut by hook and loop patches, or held open when rolled and tied up by nylon strips secured by hook and loop patches. Located on the tent panel to the left of the zippered opening, is a third opening. This opening is also circular in shape, and may be covered with a nylon fabric flap. The flap is held open or secured closed in the same manner described for the flap covering the second opening.
The tunnel tent 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 tunnel 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.
ISSUE:
Whether the articles are classified under heading 6306, HTSUS, as tents, or under heading 9503, HTSUS, as toys.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration are as follows:
6306 Tarpaulins, awnings and sunblinds; tents; sails
for boats, sailboards or landcraft; camping
goods:
Tents:
6306.22 Of synthetic fibers:
Other
* * * *
6306.29.00 Of other textile materials
* * * *
9503 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 general ENs for Chapter 95, HTSUS, state, in pertinent part, that, "[a]part 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 toys.
Further, Note 1(u) to Chapter 95, HTSUS, states that the chapter does not include "Racket strings, tents or other camping goods, or gloves (classified according to their constituent material)."
Customs has generally determined that articles similar to the instant merchandise were classifiable under subheading 6306.22.9030, HTSUS, See HQ 963574, dated September 24, 1999; HQ 962147, dated April 6, 1999; HQ 085269, dated April 13, 1990; and HQ 087116, dated July 17, 1990. However, in a number of rulings involving merchandise distinguishable from the present articles, Customs has determined, for example, that a slumber hut, a multi-unit play environment, a ball pit, a ball barrel, and a slipcover play house (without a frame), were classifiable under heading 9503, HTSUS, as toys (See, HQ rulings: 962408, 960123, 956974, 957639 and 959998).
We begin our analysis with the terms of heading 6306, HTSUS, which provides for, "Tarpaulins, Awnings and Sunblinds; Tents; Sails for Boats, Sailboards, or Landcraft; Camping Goods."
EN 63.06 provides that:
* * * * * * * * * *
(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.
( ( ( ( (
In HQ 089149, dated July 30, 1991, Customs ruled that a play tent was classifiable under subheading 6306.22.9030, because the definition of "tent" set forth in the ENs was broad enough to cover many types of tents, including play tents. See also, HQ 950217, dated December 19, 1991, affirming HQ 089149. See also: HQ 087116, dated July 17, 1990; HQ 088644, dated June 13, 1991; HQ 086969, dated April 27, 1990; HQ 086867, dated April 26, 1990; HQ 085269, dated April 13, 1990; and HQ 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.
Not every article, which provides amusement or “play situations” to children, is considered a toy for classification purposes. Note 1 to Chapter 95, HTSUS, lists several articles that might be considered toys, but which are excluded from Chapter 95. Children’s tents are a prominent example of this. 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) to Chapter 95, excludes “[r]acket strings, tents or other camping goods, . . ..” 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 that meet the definition of a tent, should be, pursuant to Note 1(u) to Chapter 95, excluded from classification in Chapter 95; regardless of their claimed use.
In accordance with the aforecited rulings, the cave tent, circus tent, dome tent, tunnel tent and tunnel must be examined to determine whether they meet the term “tent” in heading 6306 in light of its EN, and would therefore, according to Note 1(u) to Chapter 95, be excluded from classification as toys.
The Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 1999, p.1215, defines "tent" as "a collapsible shelter of fabric (as nylon or canvas) stretched and sustained by poles and used for camping outdoors or as a temporary building.” The description of articles belonging to the class or kind, "tents," in EN 63.06, is very broad in scope. The breadth of this scope coupled with the dictionary’s broad definition leads us to believe that for an article to be considered a "tent" it must, at a minimum, be covered by some flexible material, be sustained by a frame/skeleton, and provide a minimum amount of shelter.
All five of the articles are covered with water repellant, nylon fabric. While specific information regarding the tensile strength or thickness of the nylon fabric used for the subject articles has not been provided, neither heading 6306, nor EN 63.06 (4), require that the material used to construct a tent conform to a predetermined thickness.
In HQ 962147, Customs determined that hunting or duck blinds, constructed of a lightweight synthetic (nylon) woven camouflage pattern fabric, hung over a pole frame made of steel or fiberglass, featuring openings on all four sides at shoulder height and in the roof, still constituted a tent. In HQ 089149, Customs held that a play tent was classifiable in subheading 6306.22.9030, because the description of “tent” set forth in the ENs was broad enough to cover many types of tents, including play tents. Not unlike the tent in HQ 962147, the subject articles are constructed with nylon fabric treated to provide a minimum level of water repellant protection. Moreover, the specifications and samples you’ve provided demonstrate that these articles are intended for some outdoor use.
EN 63.06(4), does not require that tent fabric be “coated, covered, or laminated, or of canvas.” However, where each of the article coverings are in fact treated with a water repellant, and each article has a waterproof treated floor covering, this reflects an intention of outdoor use.
The present articles are covered with brightly colored cloth, or as in the case of the cave tent, a solid black covering with a tent flap showing a pattern of vertical black and white stripes. However, none of the heading, section, chapter notes, ENs, or Headquarters rulings suggest that the application of one design or color, even a military camouflage pattern, or large yellow and red polka dots, can substantively alter the nature of the article. Thus, whether an article is red, yellow, camouflage, or appears with a striped pattern, the fact that the article is still a tent, is not changed.
Each of the articles are held erect by a flexible frame or skeleton. Each frame is constructed of fiberglass poles resistant to the corrosive effects of continuous outdoor use. There is no apparent danger that the corrosive effects of oxidization or metal fatigue will occur even with extended exposure to outdoor use. This being noted, there are no requirements that a tent frame must be treated to prevent any particular degree of oxidization or corrosion.
In fact, there is no requirement that tent poles be capable of withstanding any particular degree of structural stress. Further, under EN 63.06(4), there is no requirement that a tent “be presented complete with their tent poles, tent pegs, guy ropes or other accessories.” The use of fiberglass poles as supports, does however, provide evidence that the structural frame can readily withstand moisture, moulding, and decay, and demonstrates an intention that the articles are intended to withstand some continued outdoor use.
All of the articles are distinguishable from the “slipcover-like textile ‘play house,’” classified in subheading 9503.90.0030, HTSUS, (discussed in HQ 959998, dated August 17, 1997), and the “toy bed tent,” classified in subheading 9503.90.6000, (in HQ 954239, dated September 14, 1993). It should be noted for example, that unlike the present articles, the slipcover-like textile “play house” in HQ 959998, had no structure unless the article was placed over a card or similar table.
Although IKEA states that its articles are “designed for indoor use,” in HQ 954239, where indoor use was a determinative factor used to establish whether a bed tent would be classifiable as a toy under heading 9503, HTSUS, Customs noted that the bed tent had elastic corners designed to fit a standard sized children’s bed mattress. Customs also found that the bed tent was designed to function solely indoors. Further, the article was made of a “flimsy” fabric, was not coated or treated to withstand even a light rain or shower, and had a porous roof. None of the subject articles mirror these indoor use features. Unlike the present articles, the bed tent in HQ 954239, was not supported by an interlocking fiberglass pole frame with a sealed roof, waterproofed floor covering and securable tent flaps.
Having determined that the articles are all covered by some flexible material, and are sustained by a durable frame/skeleton, it remains to determine whether they also provide a minimum amount of shelter.
The subject articles all provide ventilated and shaded enclosures, providing a child cover, whether on the beach or in the backyard. All of the articles have defined roofs, securable zippered or hook and loop tent flaps, and flexible weather resistant frames to protect their occupants from a rain shower, an errant garden hose, or from the hot sun.
As indicated by EN 63.06, the definition of tents is broad enough to include many types of tents, including those which are not per se, “shelters,” but that do provide protection against some elements. Customs has interpreted the term “tents” to include a variety of articles which are “shelters,” made of textile materials that form a protective enclosure and, therefore, fall within the class or kind of merchandise considered tent-like structures.
Further, the term “protection against the elements” has been interpreted by Customs to include protection from insects. This interpretation is consistent with the EN to heading 6306, HTSUS. See also HQ 959998, dated December 20, 1996, in which the following rulings discuss the classification of similar merchandise in heading 6306: HQ 956935, dated February 21, 1995, discussing the classification of a sleep screen; and HQ 083789, dated March 31, 1989; HQ 083683, dated March 30, 1989; HQ 084128, dated July 14, 1989; and HQ 084770, dated September 29, 1989, discussing the classification of screen houses. The fact that the tents discussed in HQ 959998 featured a pull down rainfly, an item prominently identified with securing tent flaps against very inclement weather, was determined not to contradict the principal use of the subject merchandise as a screen house. The absence or presence of a pull down rainfly per se, therefore, did not prevent Customs determination that the heavily exposed, meshed enclosure in HQ 959998 was classifiable as a tent. Consistent application of this determination leads us to conclude that the present articles, especially with their fully covered fabric roofs, each constitutes a tent. The presence of a mesh vent 4.5 inches in diameter on one side of the circus tent affords protection against additional elements including mosquitoes and other flying insects, while ensuring air circulation during a hot summer day. The fact that the subject articles may not be recommended as shelter against thunderstorms, when their door flaps may be zippered, or their openings otherwise be substantially secured shut, does not negate their identities as tents or their ability to protect against some recognized elements.
The sample tunnel meets the general description of “tent” provided for in EN 63.06 and numerous heaquarters rulings in that it is a semi-circular top with a flat floor. The top is sustained by a frame/skeleton. The entire structure is covered by flexible material and provides a minimum amount of shelter. The fiberglass pole frame provides the upper tunnel covering with a frame that is not readily collapsible but must be dismantled. This stability is further enhanced by the additional four fiberglass poles sewn into the fore and aft sections of its floor covering. These features enhance both the tunnel’s stability and its capacity to provide minimal shelter. This tunnel could in fact be used to provide shelter from the hot sun, or rain. Moreover, the tunnel is not designed to bend and roll with a child inside. For these reasons, we define the term “tent” for tariff purposes to include this tunnel and it too, is classifiable in heading 6306.
Although it has been noted that these articles lack various structural features, including any mechanism to secure the frames and shells to the ground, Customs has 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, nor does the heading require such. See EN 6306(4), and e.g., HQ 089149, and 950217.
In the case of these articles, it is our view that the parameters for classification in heading 6306, have been met for the following reasons:
The water repellant, nylon fabric construction is not flimsy. The articles are suitable and intended for some outdoor use;
The tents and tunnel are all designed with roll-up, zippered or otherwise securable door and opening flaps, and rain repellant roofs. All have flexible frames and are designed to provide some minimal protection against the elements of sun, sand, and breezes.
As we have concluded that each of the articles are classifiable in heading 6306, there is no need to discuss classification in heading 9503. See also, HQ 963574, dated September 24, 1999; HQ 087116, dated July 17, 1990, HQ 088644, dated June 13, 1994, and HQ 089149, dated July 30, 1991, affirmed in HQ 950217, dated December 19, 1991.
HOLDING:
The cave tent, circus tent, dome tent, tunnel tent and tunnel at issue are provided for under subheading 6306.22.9030, HTSUS, which provides for tents, of synthetic fibers, other. The quota category for each of these articles is category 669.
The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile
Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipments.”
Sincerely,
John Durant, Director Commercial Rulings Division