CLA-2 OT: RR: CTF: TCM HQ H250306 ERB
Port Director, Port of Seattle
U.S. Customs and Border Protection
1000 Second Avenue, suite 2100
Seattle, WA 98104-1020
Attn: Seth Merritt, Senior Import Specialist
RE: Application for Further Review of Protest No. 3001-13-100266; Classification of a backpacking tent
Dear Port Director:
This letter is in reference to the Application for Further Review (AFR) of Protest No. 2001-13-100266, timely filed on July 3, 2013, by counsel on behalf of The Coleman Company, Inc. (Coleman) an American company over 100 years old specializing in outdoor recreation products. The AFR concerns the classification of the screened 4-person Evanston™ backpacking tent under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
This AFR concerns two entries made at the Port of Seattle on March 1, 2010. The subject merchandise entered under subheading 6306.22.9030, HTSUS, which provides for tents of synthetic fabric, other. Both entries were liquidated by CBP on January 11, 2013. Coleman argues the correct classification is 6306.22.1000, HTSUS, which provides for backpacking tents.
The subject merchandise is the Evanston™ Tent, Model No. 2000010637, a screened 4-person tent. It measures 9 feet by 7 feet, which creates up to 63 square foot of room in its interior. Once put together, it stands 4 feet, 11 inches high. The total weight, including carrying bag and all accessories needed to pitch the tent, is 13.86 pounds. The carry size is 15 inches by 7.5 inches by 8 inches, which is 1,500 cubic inches total. The exterior cover is comprised of polyester, which has been treated with the trademarked WeatherTec™ System, created to protect the users from weather elements. The tent’s packaging states that it is leak-free, contains protected seams, it has weather-resistant fabric, waterproof floors, zipper protection and a wind-strong frame. It is marketed and stamped as “Great for Backpacking.” The following relevant information regarding the mesh component of the tent was provided by counsel via email, dated March 6, 2014 to the National Commodity Specialist Division (NCSD) of CBP:
[T]his model is constructed with walls that are a combination of mesh and fabric. This design aspect is desirable for 3-Season backpacking tents for several reasons but chiefly to (1) provide ventilation and reduce condensation during warm weather; (2) reduce the weight; and (3) permit stargazing on clear nights without the threat of insects that are so pervasive in warm weather in the deep woods. The door and two sides have interior zipper closures to cover the mesh portion of the tent. During inclement weather, the rear mesh panel is designed to be covered by the tightly fitted rainfly (also known in the industry as the “outer tent”). The rainfly provides protection from rainstorms and the one used on the Evanston is designed to tightly and completely fit over the rear panel. The rainfly specification includes coatings that are designed to make the fabric both weather repellant (water beads up) and water resistant to an industry standardized 800mm water column test. Seams along the top are taped to prevent leakage through the stitching holes. Also, the tension can be adjusted on the rainfly to provide more air flow in warmer weather or to keep the fly closer to the tent body in colder weather and keep its occupants cozy when the mercury dips. The Evanston tent line is made to Coleman’s Weathertec™ System standards. Weathertec™ is Coleman’s exclusive weather protection system that incorporates the latest technologies to protect tent users from the elements. In addition to meeting rain and wind protection standards, the Evanston tents incorporate weather-resistant fabric, waterproof floors, zipper protection, and a wind-strong frame.
ISSUE:
Whether the subject merchandise is properly classified under subheading 6306.22.9030, HTSUSA, as a “Tent: Of synthetic fibers: Other” or under subheading 6306.22.1000, HTSUSA, as a “Tent: Of synthetic fibers: Backpacking tent.”
LAW & ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429 §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §1514(c)(3)(2006)).
Further Review of Protest No. 3001-13-100266 is properly accorded to Coleman pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with previous decisions by CBP of substantially similar merchandise.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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.
The HTSUS subheadings under consideration are the following:
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:
6306.22 Tents: Of synthetic fibers
6306.22.1000 Backpacking tents
6306.22.9030 Other: Other.
Because the classification dispute of the subject merchandise occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to Chapter 63 provide in pertinent part:
(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 tends 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 heading classification is not in dispute, and neither is the synthetic composition of the textile at the six-digit subheading level. The Evanston™ Tent is packaged and sold with various poles, stakes, and guylines, to ensure support and security when properly driven into the ground. It has a waterproof floor, and water resistant outer material. It has protected seams, meaning, the seams are inverted to keep the interior dry during inclement weather. Three of the four interior walls are made of mesh to allow users to stargaze without the threat of insects, or enjoy ambient temperatures when inside the tent. The tent also includes interior zipper closures (rainflies) to cover the mesh portion of the tent securing it from weather elements like hail, rain, sleet or snow, or simply cold temperatures. The four walls, roof, and floor together form an “enclosure” and satisfies the EN to Chapter 63. Thus, it is a “tent” under heading 6306, HTSUS, and as it is made of synthetic fibers, it is properly described by the subheading text of 6306.22, HTSUS. Accordingly, our analysis begins at the eight-digit level.
Backpacking tents have not been defined at the international level. The distinction between backpacking tents and other tents is an issue only at the United States eight-digit subheading level. See GRI 6, supra. In The Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976), a case decided under the Tariff Schedules of the United States (TSUS, the precursor to the HTSUS), the Court was persuaded that backpacking was a sport and cited various characteristics to support this: the tent’s design, lightness, compactness, ease of assembly, and necessity for use in the sport of backpacking. As such, backpacking tents would be classified under the provision for sporting equipment which carried a lower duty rate. Thus, it became necessary to distinguish between tents used for backpacking, and all other tents used for other purposes. Customs issued revised guidelines for distinguishing backpacking tents from other tents in T.D. 86-163, dated August 5, 1986. The revised guidelines read as follows:
To qualify a tent as “sports equipment” under item 735.20, TSUS [Now, subheading 6306.22.1000, HTSUS], the following criteria must be met:
It must be specially designed for the sport of backpacking.
It must be composed of nylon, polyester, or any other fabric of man-made fibers.
(3) If designed for 1 or 2 persons,…
(4) If designed for 3 or 4 persons, the tent must meet the following criteria:
(a) Have a floor area of 65 square feet or less; and
(b) Weight 12 pounds or less, including tent bag and all accessories necessary to pitch the tent; and
(c)Have a carry size of 30 inches or less in length and 10 inches or less in diameter. If other than cylindrical in shape, the tent package must not exceed 2,350 cubic inches.
Any tent with a floor of more than 65 square feet and a standing height of more than 60 inches is a tent for general recreational use.
***
Customs has repeatedly stated that determinations under the TSUS, while not binding, are persuasive in this matter. The Evanston™ tent meets the quantitative requirements of T.D. 86-163 in all ways, except for the allowable weight. It is designed and marketed for the sport of backpacking. The tent is lightweight, weather-resistant, stable, durable, easy to assemble, and highly portable given its size and weight. And as it is designed to accommodate up to four people, the carry size and allowable cubic inches fall within the T.D. 86-163 guidelines. The tent is 1.86 pounds above the allowable weight limit; however this does not vary significantly enough from the criteria set for in T.D. 86-163 to be denied classification as a backpacking tent. This is consistent with previous CBP rulings that allow some flexibility to the guidelines as regards backpacking tents. See HQ 961995, dated October 25, 1999, (classifying backpacking tents under subheading 6306.22.1000, HTSUSA, which varied from the guidelines in T.D. 86-163, by citing to Headquarters Ruling Letter (HRL) 086091, dated January 11, 1990 (classifying a portable tent with a carry bag over 30 inches in length as a backpacking tent, under subheading 6306.22.1000, HTSUSA); HRL 086076, dated February 15, 1990, (classifying four tents, two of which exceeded the weight limit in the guidelines by 3 ounces, and 12 ounces respectively, and two of which exceeded the weight limits by 8 ounces each and 12 inches over the height limitation); and HRL 951263, dated June 15, 1992, revoking Ruling 864811, (classifying backpacking tents which exceeded the guidelines CBP stated “when taking into consideration all factors, the styles did not vary significantly enough from the criteria set for in T.D. 86-163 to be denied classification as backpacking tents.”)). Minor variances in carry weight, as long as the other parameters are satisfied, are sufficient for classification under subheading 6306.22.1000, HTSUSA. Thus CBP finds that the subject tents meet all the requirements for classification as a backpacking tent, and are classified as such under subheading 6306.22.1000, HTSUSA.
HOLDING:
By application of GRI 1 and GRI 6, the Evanston™ Tent, Model No. 2000010637 Backpacking tent is classified in subheading 6306.22.1000, HTSUSA, which provides for “Tents: Of synthetic fibers: Backpacking tents.” The column one, general rate of duty is FREE.
You are instructed to GRANT the protest.
In accordance with Sections IV, and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division