OT:RR:CTF:FTM H318707 JER
Center Director
Apparel, Footwear & Textile CEE
Center of Excellence & Expertise
U.S. Customs and Border Protection
6601 N.W. 25th Street, Rm 202
Miami, FL 33122
Attn.: Jose R. Ramos, Supervisory Import Specialist
RE: Internal Advice; Tariff Classification of Children’s Play Tents
Dear Center Director:
This is in response to your request for internal advice, dated May 20, 2021, regarding the tariff classification of children’s play tents under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below.
FACTS:
The imported merchandise consists of three tents, which are described as play tents or kid’s tents and include: the Giant Party Kids Tent, Colorful Curvy Kids Tent, and the Rainbow Kids Tent. According to the Alvantor’s (importer’s) website, the subject merchandise consists of the following dimensions and features.
Giant Party Kids Tent claims to be 58”x58”x47” and folds down to fit into a portable bag, size dia. 3.2”x17.5”, and weighs 2.5 lbs. It is advertised for use by children ages 3-6, with a Velcro Tab closure at the center door panel and bottom of each panel. The Alvantor website describes the merchandise as follows:
The Giant Party Kid Tent is described as being a vibrant multi-Colored kid’s tent which is larger their regular play tents. It is suitable for 3-6 kids who have a very creative imagination! Your little ones can host their own party for fun. The vibrant color gives your kids a creative imagination. Strong fiberglass poles make this children’s play tent sturdy. Also great for kids to learn how to pitch a tent! Mesh top for fun in the sun and for parents to check up on their children. Includes a tunnel door so you can create tent cities with our other play tents and tunnels. It comfortably fits adults and children for indoor and outdoor activities. Used as a playhouse, it can provide a private world for playroom at home, for sleepovers, birthday parties, picnics, parks, backyard, carnival, school, nursery, daycare playground etc., and great for dogs, cats, and pets as well!
The Colorful Curvy Kids Tent measures 48”x48”x42”. Folded dimensions are as follows: 17.5”x4”x4”, weight 1.8 lbs. It is suitable for 2-3 children and contains a zippered front closure. The Alvantor website describes the merchandise as follows:
The Colorful Curvy Play Tent is described by Alvantor as being very attractive for its special curvy sewing line. It has 4 different color combination on 4 sides panel, which will catch your little one’s eyes at first sight. Includes a mesh window for fun in the sun and for parents to check up on their children. Includes a tunnel door so you can create TENT CITIES with our other play tents. PLEASE NOTE THIS IS INTENDED FOR PLAY.
Rainbow Kids Tent measures 48”x 48”x42” and folds down to fit into a portable bag, size dia. 3”x17.5” H, weight is 1.9 lbs, suitable for 2-3 children, with a Velcro Tab closure at the center door panel and bottom of each panel. The Alvantor website describes the merchandise as follows:
The Rainbow Kid Tent has some of the same features as the other two Kid Tents. It is a multi-Colored kids’ tent will catch your kids’ eyes at first sight. In this toy tent, your little ones can play by themselves for hours, which gives yourself some time to relax.
ISSUE:
Whether the subject children’s play tents are classifiable as tents under subheading 6306.22.90, HTSUS, or as toys under subheading 9503.00.90, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2021 HTSUS headings at issue are as follows:
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:
Tents:
6306.22 Of synthetic fibers:
6306.22.90 Other…
* * *
9503 Other toys; reduces-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
* * *
9503.00.90 Other…
* * *
The Legal Notes to Chapter 95, HTSUS, provide, in relevant part, as follows:
1. This chapter does not cover
(v) Racket strings, tents, or other camping goods, or gloves, mittens and milts (classified according to their constituent material); [Emphasis added]
* * *
3. Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of the merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 63.06 provides, in pertinent part, as follows:
This heading covers:
(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 canvas. They usually have a single or double 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 house 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.
EN 95.03 provides, in pertinent part, as follows:
This heading covers:
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults).
* * *
(xxiii) Play tents for use by children indoors or outdoors.
* * *
For purposes of tariff classification, the distinction between a tent designed for use during camping or other use as an outdoor shelter and a “play tent” intended to be used by children as a playhouse or playful activity was established in Ero Industries v. United States, 24 C.I.T. 1175, and later affirmed in Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000). In Ero Industries, the court held that certain tents were classifiable as “toys” of subheading 9503.90.00, HTSUS, rather than as “tents” of subheading 6306.22.90, HTSUS. The court in Ero Industries found that “tents” are temporary structures used for protection against the elements. By contrast, the court stated that “play tents” were structures that afforded a child amusement during play activities. See id. at 1364. The court concluded that the utility value of the tent was incidental to its amusement value, noting that “play tents” were not shelters or camping tents. Id. at 1361.
At issue is whether the subject tents are classified under heading 6306, HTSUS, as tents or under heading 9503, HTSUS, as toys. The EN to heading 63.06, HTSUS, explains that tents are shelters. Similarly, EN 63.06 provides, in part, that the heading covers “tents of various sizes and shapes, e.g., marquees and tents for military, camping (including backpacking tents), circus, beach use.” The court in Ero Industries stated that camping tents are properly considered to have a utilitarian purpose (i.e., structures which are used as outdoor shelters). In general, these types of tents are designed with large mesh windows for maximum ventilation and for protection from insects. The doors of such tents are secured closed by zippers or other mechanism, and generally have mesh coverings. Many tents have specially sealed floor seams, storm flaps and polyurethane coating or other protective coatings to block out water. For example, in Headquarters Ruling Letter (“HQ”) 962147, dated April 6, 1999, CBP classified a camping tent under heading 6306, HTSUS, stating that the tents provided shelter against the elements. The decision in HQ 962147 explained that shelters are temporary structures that provide a minimal threshold for protection against the elements. Likewise, in HQ 962147, CBP stated that a tent of heading 6306, HTSUS, need not be fully enclosed and need not protect against extremes in weather. In sum, tents of heading 6306, HTSUS, are temporary structures which serve a utilitarian purpose during outdoors use.
On the other hand, classification of tents under heading 9503, HTSUS, requires that the tents be “play tents” (i.e., “toys”) which are intended to provide an amusement value for children during playful activities. This is primarily because Note 1(v) to Chapter 95, HTSUS, expressly excludes tents. Further, EN 95.03 (D) (xxiii) indicates that heading 9503 includes play tents for use by children indoors or outdoors. Classification under heading 9503, HTSUS, is controlled by the “principal use” of goods of the class or kind to which the imported goods belong at or immediately prior to the date of the importation. Id. In Lenox Collections v. United States, 20 Ct. Int’l Trade 194, 196 (1996), the court held that principal use is “the use which exceeds any other single use.” Thus, to be classified as a toy in heading 9503, HTSUS, an article must belong to the same class or kind of goods which have the same principal use as toys. To determine whether an article is included in a particular class or kind of merchandise, CBP considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v. Carborundum Co., 536 F.2d 373, 377 (Cust. Ct. 1976).
Although the term “toy” is not defined in the HTSUS, the General Explanatory Notes to Chapter 95, HTSUS, state that the “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Insofar as it pertains to toys, the court construes heading 9503, HTSUS, to be a “principal use” provision. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000). Thus, to be a toy, the “character of amusement involved [is] that derived from an item which is essentially a plaything.” Wilson’s Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967).
The Ero Industries court stated that, “It is beyond peradventure that young children derive “amusement” not only from the stimulation of their imagination by the fictitious children’s characters and images imprinted on the imports, but also from the function of the imports to enclose the child while “playing fort, “playing house,” playing “hide-and-seek,” and pretending to maneuver a spaceship, a car, etc.” 118 F. Supp 2d at 1360. However, structurally, play tents are tents of a sort. “When amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement.” Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977).
The Ero Industries court employed this maxim to determine whether the principal use of the merchandise at issue was as play tents (i.e., toys) or as tents. To determine whether utility or amusement prevailed, the court looked at the construction of the play tents, the marketing, size, design, ability to offer protection against the elements and use. The court found that the play tents were not practical as tents or shelters. See Ero Industries, 118 F. Supp 2d at 1357. This is due, in part, because they were not designed or constructed for protection against the elements. See id. at 1364. The Ero Industries court concluded that the utility of the merchandise before it was incidental to the amusement value of the play environment it provided, and that the principal use was not that of shelters, but instead as toys. Further, as the imported articles were not designed for attachment to the ground, and were not used for camping, they were not excluded by the terms of Note 1(v), Chapter 95, HTSUS. Accordingly, the play tents of Ero Industries were classifiable in heading 9503, HTSUS, as toys rather as tents under heading 6306, HTSUS.
To determine whether the subject “play tents” serve the utilitarian purpose of a temporary shelter (i.e., a tent) or are more properly classified as a toy designed to provide amusement to children, we apply both the Carborundum factors and the factors set out in Ero Industries. First, we examine the physical characteristics of the subject tents, their design, construction and their ability to protect against weather conditions. The Alvantor kid’s tents are equipped with fiberglass poles to sturdy the tent. However, these poles do not penetrate or attach to the ground but instead rest atop the surface allowing the tent to be portable so it can be used in any room or in the back yard. Because the subject tents are not designed nor have the capacity to be secured to the ground, they cannot provide the type of shelter contemplated by heading 6306, HTSUS. That is the do not have the capacity to withstand windy conditions. Additionally, the Alvantor’s kid tents are made of a thin nylon or polyurethane material, which provide minimal water resistance with no sealing or coating to protect against rainy leaks or other weather conditions. The Alvantor tents are lightweight with weights that range between 1.8 lbs. to 2.5 lbs. Colorful Curvy Tent, https://www.alvantor.com/collections/kids-tent/products/colourful-curvy-kids-tent?variant=15909763776585 (last visited 08/24/2021). The unsecured fiberglass poles and lightweight construction defeat any utilitarian value or protection against the elements. As such, the subject “kid’s tents” could not be used as outdoor camping tents or outdoor shelters.
Next, we examine the marketing and the channels, class or kind of trade in which the merchandise moves. In Ero Industries, the court stated that advertising such as, “great for indoor and outdoor fun,” strongly suggested “cognitive amusement rather than somnolence or napping.” Id at 1363. The advertisement found on the Alvantor website indicates that the subject play tents are marketed as being “kid tents.” For instance, the Giant Party Kids Tent is advertised as being “a vibrant multi-colored kids tent which is suitable for 3 to 6 kids who have a very creative imagination.” According to the Alvantor website, the subject tents are “Safe, protective, spacious, and durable for infants, baby to toddlers, and “big kids.” Similarly, the Colorful Curvy play tent is said to have 4 different color combination on a four-sided panel designed “to catch your little one’s eye.” The Alvantor website shows small children, including toddlers, states that the kid tents are designed and intended to be a play area for children “to explore their creative imagination.” Moreover, Alvantor sells multiple types of tents which include bubble tents, screen tents, beach tents and camping tents. The Alvantor website has a separate webpage specifically for “kids’ tents.” As such, the subject kids’ tents are not marketed toward adult users for purposes of procuring a temporary shelter or protection against the elements.
Additionally, we look at the expectations of the ultimate purchaser and whether the tents provide amusement and thus can be considered a plaything. The Alvantor’s website states that the subject kid’s tents are intended to be “used as a playhouse, [which] can provide a private world for playroom at home, for sleepovers, birthday parties, picnics, parks, backyard, carnival, school, nursery, daycare playground etc.” Accordingly, purchasers of these tents are typically parents who are seeking a play area for their small children. As the website states, these tents include a mesh window for fun in the sun and for parents to check up on their children. In addition to these expectations, the design of the tents lend themselves to a playful environment and therefore satisfy the expectation of children who make use of these tents. For example, each play tent model features a side opening referred to as a “tunnel door.” Each tent has either a circular tunnel door or a side panel which allows the child to connect two or more tents together and create a tent city wherein the child could tunnel from one tent to another. Much like the tents discussed in Ero Industries, the subject kid tents provide the child with an enclosure while “playing fort,” “playing house,” playing “hide-and-seek,” and pretending to maneuver a spaceship, a car, etc.” 118 F. Supp 2d at 13.
Lastly, the subject kid tents are designed and intended to be used for the amusement of children. In HQ 964897, dated August 13, 2002, CBP classified children’s play tents under subheading 9503.22.90, HTSUS, as toys rather than as tents. The decision in HQ 964897 followed the rationale in Ero Industries and found that the children’s play tents did not serve the utilitarian purpose of a camping tent but instead provided the amusement value of a toy. In HQ 964897, CBP noted that the theme of a big top circus tent fostered a play environment and stimulated imagination. Much like the subject kid tents, in HQ 964897, the shape of the tunnels created a play environment for activities involving crawling or hiding with the dome and tunnel provided entertainment not only because of the sense of enclosure, but also because with the numerous openings the child could create a jungle gym-like environment. Finally, EN Note 95.03 (D) (xxiii) specifically states that heading 9503 includes “play tents for use by children indoors or outdoors.” The subject kid’s tents are precisely described by the ENs to heading 9503, HTSUS, as they are play tents designed for use by children to play in – whether indoors or outdoors.
HOLDING:
By application of GRI 1, the Giant Party Kid Tent, the Colorful Curvy Kid Tent and the Rainbow Kid Tent, are all classified as toys in heading 9503, HTSUS. In particular, they are classified in subheading 9503.00.90, HTSUS, which provides for: Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other.” The 2021 general, column one rate of duty is Free.
Duty rates are provided for the internal advice requestor’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at https://hts.usitc.gov/current.
You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, 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/, and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division