OT:RR:CTF:FTM H311492 TJS
Center Director
Apparel, Footwear & Textiles CEE
200 East Bay Street
Charleston, South Carolina 29401
Attn: Nikki Bobbie, Import Specialist
RE: Application for Further Review of Protest No. 2704-20-127807; Tariff Classification of Pop-up Tents from China
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2704-20-127807, timely filed on May 19, 2020, by the law firm of Junker & Nakachi, on behalf of their client, Under The Weather Inc. (“UTW” or “Protestant”), concerning U.S. Customs and Border Protection’s (“CBP”) tariff classification of certain pop-up tents under subheading 6306.22.9030 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). UTW claims that the pop-up tents are properly classified under subheading 6306.22.1000, HTSUSA. Our decision is set forth below.
FACTS:
This AFR concerns the classification of three models of pop-up tents identified as MyPod™, OriginalPod™, and XLPod™. The tents are composed of waterproof polyester, clear weather-treated polyvinylchloride (PVC), and flexible steel wire rod. The polyester fabric constitutes the roof, floor, and back wall, and the PVC material constitutes three walls of the pop-up tent. The MyPod™ has zippered doors on three walls and a zippered partial opening on the back wall for ventilation. The OriginalPod™ and XLPod™ have tapered walls, a zippered door on the front, and zippered partial openings (windows) on the remaining walls. The tents come with metal pegs that secure the four bottom corners to the ground. When not in use, the tent is folded into a disc shape and placed in a specially shaped carry case that includes carrying straps for carrying the tent on the back. UTW claims that the tents are designed to be used in two positions: vertical for sitting and horizontal for sleeping. The country of origin of these pop-up tents is China.
Product specifications are as follows:
MyPod™
OriginalPod™
XLPod™
Dimensions when assembled
35”(W) x 35”(D) x 59”(T)
42”(W) x 42”(D) x 59”(T)
45”(W) x 45”(D) x 59”(T)
Floor area
14.34 square feet in horizontal position 8.51 square feet in vertical position
16.39 square feet in horizontal position 11.11 square feet in vertical position
18.13 square feet in horizontal position 14.06 square feet in vertical position
Carry package diameter
19.5 inches
20 inches
21 inches
Carry package width
3 inches
3 inches
3 inches
Carry package volume
895.94 cubic inches
942.47 cubic inches
1039 cubic inches
Weight (incl. tent bag and all accessories)
7.02 lbs
7.1 lbs
7.22 lbs
Materials
Waterproof polyester; weather-treated PVC; 1.5mmx6mm steel wire rod
Waterproof polyester; weather-treated PVC; 1.5mmx6mm steel wire rod
Waterproof polyester; weather-treated PVC; 1.5mmx6mm steel wire rod
Occupancy
1 person
1 person
1 person
Below are photos or the MyPod™, OriginalPod™, and XLPod™:
According to UTW’s submission, UTW began importing pop-up tents in 2010 under subheading 6306.22.1000, HTSUSA, which provides for, “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Backpacking tents.” In September 2018, CBP issued a Customs Form (“CF”) 29 Notice of Action, in which CBP reclassified 12 entries of pop-up tents, identical to the ones at issue, under subheading 6306.22.9030, HTSUSA, which provides for, “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other: Other.” In accordance with the September 2018 CF 29, UTW began entering the tents under subheading 6306.22.9030, HTSUSA. On April 9, 2019, UTW filed Protest No. 2704-19-102919 protesting CBP’s tariff classification of the pop-up tents in subheading 6306.22.9030, HTSUSA. On October 10, 2019, CBP granted Protest No. 2704-19-102919, finding that the pop-up tents were classified in subheading 6306.22.1000, HTSUSA. To reflect the approval of Protest No. 2704-19-102919 and collect refunds, UTW filed Protest No. 2704-19-107436 on December 17, 2019 for liquidated entries and filed Post Summary Corrections for unliquidated entries made while Protest No. 2704-19-102919 was pending. On January 24, 2020, CBP issued a CF 29 to UTW stating its intention not to refund duties with respect to certain entries of the pop-up tents because the tents were not considered backpacking tents. On May 19, 2020, UTW filed the subject Protest No. 2704-20-127807 and AFR for seven entries dated between December 2018 and February 2019 that were liquidated between November 2019 and January 2020. The subject tents were liquidated as entered under subheading 6306.22.9030, HTSUSA.
ISSUE:
What is the tariff classification of the MyPod™, OriginalPod™, and XLPod™ pop-up tents under the HTSUSA?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on May 19, 2020, within 180 days of liquidation of the first entry pursuant to 19 U.S.C. § 1514(c)(3).
Protestant alleges that Further Review of Protest No. 2704-20-127807 should be accorded pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise. We find that Further Review of Protest No. 2704-20-127807 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a).
Classification of goods 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 GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The 2019 and 2020 HTSUSA provisions 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 addition, the Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 63.06 provides, in relevant part, as follows:
(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.
* * * * *
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. In Newman Importing Co. v. United States, 415 F. Supp. 375 (Cust. Ct. 1976) the court held that backpacking was a sport and tents used in pursuit of backpacking could be considered sport equipment under the Tariff Schedule of the United States (“TSUS”), the predecessor to the HTSUS. Accordingly, CBP promulgated guidelines in C.S.D. 79-108, dated August 21, 1978, to distinguish between tents for backpacking, as sport equipment, and all other tents, as articles of textile materials. At that time, there was no specific provision for backpacking tents in the tariff schedule. In 1984, a specific classification for “backpacking tents of textile material” was added under item 735.2048 of the TSUS. Treasury Decision (“T.D.”) 86-163, dated August 5, 1986, updated the specific guidelines for determining whether a tent could be considered a backpacking tent for purposes of classification under item 735.20 of the TSUS. The guidelines in T.D. 86-163 provided the following criteria for classification as a backpacking tent:
It must be specially designed for backpacking.
It must be composed of nylon, polyester, or other fabric of man-made fibers.
If designed for one or two persons, the tents must meet the following criteria:
Have a floor area of 45 square feet or less; and
Weight 8 ½ pounds or less; and
Have a carry size of 30 inches or less in length and 9 inches or less in diameter. If other than cylindrical in shape, the tent package must not exceed 1,900 cubic inches.
If designed for three or four persons, the tent must meet the following criteria:
Have a floor space of 65 square feet or less; and
Weigh 12 pounds or less, including tent bag and all accessories necessary to pitch the tent; and
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.
Although T.D. 86-163 provides guidelines on whether tents are classified as “sport equipment” under the TSUS, which is no longer in effect, CBP continues to apply the guidelines to classify backpacking tents under subheading 6306.22.1000, HTSUSA. See Headquarters Ruling Letter (“HQ”) H250306 (Dec. 3, 2014); HQ 961995 (Oct. 25, 1999); HQ 951263 (June 15, 1992); HQ 086076 (Feb. 15, 1990); and HQ 086091 (Jan. 11, 1990).
UTW argues that the subject tents meet the guidelines under T.D. 86-163. Specifically, UTW argues that the tents are specially designed for the sport of backpacking because the tents are lightweight, weather resistant, stable, durable, easily assembled and disassembled, and highly portable because the tents can be folded into a lightweight package that can be worn underneath a backpack. UTW also contends that the tent was initially designed for backpacking.
According to UTW’s measurements, the MyPod™, OriginalPod™, and XLPod™ meet the dimensional and weight criteria for one-person backpacking tents in T.D. 86-163. With regard to the fabric composition criterion, the subject tents are composed of three PVC walls and a polyester top, bottom, and back. The presence of plastic material does not preclude classification as a backpacking tent. See, e.g., New York Ruling Letter (“NY”) J87818 (Sept. 2, 2003) (classifying tents with a floor made of polyethylene sheeting material as backpacking tents); HQ 961834 (June 17, 1999) (stating that a tent made substantially of nylon, but with a floor and small part of the walls made of polyethylene, met the fabric composition requirement). However, CBP has ruled that a tent fails to meet the requirement for a backpacking tent if a significant portion of the tent is composed of plastic. In NY B84342, dated May 6, 1997, CBP determined that a tent did not meet the T.D. 86-163 guidelines because it was not specially designed for the sport of backpacking and a significant portion of the tent was composed of plastic. Specifically, the floor and three-quarters of the walls were composed of polyethylene sheeting material, the balance of the walls and roof were made of woven nylon taffeta fabric, and the tent featured a mesh screen fabric door and window. Here, UTW’s tents have three walls composed primarily of clear PVC, which constitutes a substantial portion of the tents and distinguishes UTW’s tents from typical backpacking tents, which are composed primarily of fabric of man-made fibers. See, e.g., NY N300778 (Oct.23, 2018) (bivouac sacs made of man-made fabric); NY N239224 (Mar. 12, 2013) (tents made of nylon); How to Choose a Backpacking Tent, REI, https://www.rei.com/learn/expert-advice/backpacking-tent.html (“A wide range of specialized nylons and polyesters are used in tents.”) (last accessed Sept. 23, 2020).
In examining the physical characteristics, design, and marketing, we find that the tents are not specially designed for the sport of backpacking. UTW claims that the tents are designed so that a person can sleep when the tents are placed horizontally. The court in Newman notes that “the use of a tent for shelter is part of the sport of backpacking, which encompasses not only the act of walking with a pack on the back but all the activities associated with the maintenance of the individual while away from “civilization.”” Newman Importing Co. v. United States, 415 F. Supp. at 376. Furthermore, in T.D. 86-163, CBP stated that “backpacking tents are not designed for the storage of gear and equipment, changing, standing, or eating, but rather to serve as a shelter and a temporary sleeping area for backpackers.” Thus, a tent that is specially designed as a shelter for backpackers must provide the facility for rest and sleep as part of self-maintenance. Although UTW provided photos depicting a person laying horizontally in the tent, these photos do not convince us that the tents are suitable for sleeping. The tents have a horizontal length of only 59 inches (4 feet 11 inches) and therefore are not suitable as a sleeping shelter for an average-heighted person. UTW’s website suggests laying the tent “on its side and climb into a sleeping bag.” However, a sleeping bag will not fit in the horizontal tents because sleeping bag lengths typically range to fit people up to 5 feet 4 inches to those 6 feet 6 inches in height. See How to Fit a Sleeping Bag, Be Outdoors, https://www.outdoors.org/articles/amc-outdoors/how-to-fit-a-sleeping-bag (Apr. 24, 2012); Choosing the Right Fit For Sleeping Bags, Therm-a-Rest, https://www.thermarest.com/blog/choosing-sleeping-bag-fit/ (“Therm-a-Rest bags come in three sizes: small (5 ft. 6 in.), regular (6 ft.), and long (6 ft. 6 in.).”) (Mar. 7, 2019); Sleeping Bags, Field & Stream, https://www.fieldandstreamshop.com/f/sleeping-bags (offering adult sleeping bags ranging 5.5 feet to over 6 feet) (last accessed Sept. 23, 2020). According to the Protestant’s submission, UTW designed the tents to meet the 60 inch height restriction for backpacking tents in T.D. 86-163. In doing so, however, UTW limited the horizontal floor space, impairing the tent’s livability and viability for backpacking. We also note that because the peg loops are located only on the bottom corners, the pegs would not securely anchor the tent to the ground when placed horizontally. We find that the tents are not specially designed for the sport of backpacking because they do not function as sleeping tents.
Furthermore, there is conflicting evidence as to UTW’s claim that the tents were originally designed for backpacking. UTW provided statements from their website, a signed declaration of UTW’s founder, and email exchanges between UTW’s founder and a manufacturer to support this claim. However, UTW’s website also states, “After years in the making, in 2010 [founder Rick Pescovitz] sketched out his first WeatherPod™ design on his way back from one of his kid’s soccer tournaments after he and other spectators sitting in 29-degree sleet, high winds, and freezing cold conditions were soaked to the bone.” Furthermore, Mr. Pescovitz appeared on the television show “Shark Tank,” where he explained that UTW “has revolutionized the outdoor spectator experience.” Throughout his business pitch, he explains that he invented the UTW sports pod after encountering inclement weather elements while watching his kid’s outdoor athletic games. Notably, the Shark Tank pitch does not include any reference to backpacking or sleeping. Shark Tank, Under the Weather, https://utwpods.com/blogs/news-and-views/shark-tank (last accessed Sept. 17, 2020). Despite this conflicting evidence, we find that although backpacking may have been a consideration in the inception of the tents, the ultimate and current design is not suitable for backpacking.
In addition to the design, the tents’ marketing indicates that they are primarily used for general recreation. UTW markets the tents to spectators of outdoor sporting events and, recently, as solutions for “social distancing.” In addition to the Shark Tank episode, UTW has promoted the tents on several television news programs as a “tailgate essential” for watching outdoor sporting events. None of the segments mentions that the tents are designed or used for backpacking or sleeping. News and Views, Under the Weather, https://utwpods.com/blogs/news-and-views (last accessed Sept. 17, 2020). Product reviews on UTW’s website and other online retailers further indicate that most consumers use the tents for watching outdoor sports events.
Protestant argues that the pop-up tents are similar to those classified in HQ 961995. The merchandise in HQ 961995 consisted of four styles of pop-up tents constructed of nylon woven fabric. The tents consisted of a spring metal frame within the fabric that could be coiled into a flat disc shape. The folded tents were held in place by an elasticized strap and contained in a zippered disc-shaped carrying case made of the same material. The user could carry the case by its handles or attach it to a backpack. Although the tents at issue and those in HQ 961995 have a similar pop-up design and disc-shaped carry case, they are distinguishable because the tents at issue have a significantly smaller floor area. Unlike the tents in HQ 961995, where the tents’ floor area ranged from 26 to 54 square feet, the MyPod™, OriginalPod™, and XLPod™ have a floor space of 8.51, 11.11, and 14.06 square feet, respectively, in the vertical position, and 14.34, 16.39, and 18.13 square feet, respectively, in the horizontal position. As discussed above, floor space affects a tent’s livability and functionality as a shelter during backpacking.
Consistent with prior CBP rulings and pursuant to T.D. 86-163, we find that the pop-up tents do not meet the criteria to qualify as backpacking tents under subheading 6306.22.1000, HTSUSA. Therefore, the subject pop-up tents are classified under subheading 6306.22.9030, HTSUSA, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other: Other.”
Protestant also claims that CBP is precluded from denying the protest without publishing the proposed ruling pursuant to the notice and comment requirements of 19 U.S.C. § 1625(c). Protestant argues that CBP’s approval of Protest No. 2704-19-102919 on October 10, 2019, in which CBP classified similar and identical tents as backpacking tents under subheading 6306.22.1000, HTSUSA, was the result of considered deliberations by CBP and application of the Customs laws. As such, Protestant argues that the approval of Protest No. 2704-19-102919 constitutes a “prior interpretive ruling or decision” for purposes of 19 U.S.C. § 1625(c), and CBP cannot now modify or revoke the classification decision made therein without observing the notice and comment procedures provided for in 19 U.S.C. § 1625(c). In support of its argument, UTW cites Int’l Customs Prods. v. United States, wherein the Court of International Trade held that a CF 29 Notice of Action issued by CBP after a tariff rate investigation of the Plaintiff’s product and several months of deliberation and debate within the agency was an interpretive ruling or decision under 19 U.S.C. § 1625(c). Int’l Customs Prods. v. United States, 549 F. Supp. 2d 1384, 1390-94 (Ct. Int’l Trade 2008) (aff’d Int’l Customs Prods. v. United States, 748 F.3d 1182, 1185-89 (Fed. Cir. 2014)).
19 U.S.C. § 1625(c) provides that:
A proposed interpretive ruling or decision which would –
(1) modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or
(2) have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
shall be published in the Customs Bulletin. The Secretary shall give interested parties an opportunity to submit, during not less than the 30-day period after the date of such publication, comments on the correctness of the proposed ruling or decision. After consideration of any comments received, the Secretary shall publish a final ruling or decision in the Customs Bulletin within 30 days after the closing of the comment period. The final ruling or decision shall become effective 60 days after the date of its publication.
Section 1625(c)(1) applies only to “prior interpretive rulings and decisions” covering merchandise identical to the merchandise that is the subject of a dispute. Although UTW attempts to draw an analogy between Int’l Customs Prods. v. United States and this case, extensive intra-agency deliberations involving multiple agency officials at issue in Int’l Customs Prods. are hardly equivalent to the actions of a single Senior Import Specialist in reviewing and allowing Protest No. 2704-19-102919. Here, CBP merely allowed Protest No. 2704-19-102919 and there was no protest review decision. Thus, we find that Protestant has not demonstrated that CBP has issued a pertinent “prior interpretive ruling or decision” within the meaning 19 U.S.C. § 1625(c)(1) and Protestant’s claim regarding that provision fails. See HQ H242777 (Oct. 15, 2019).
HOLDING:
By application of GRI 1, the subject pop-up tents are classified under subheading 6306.22.9030, HTSUSA, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other: Other.” The 2019 and 2020 column one, general rate of duty is 8.8% ad valorem.
You are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division