CLA-2 RR:CR:TE 962147 jb
Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Il.60607-4523
RE: Decision on Application for Further Review of Protest No. 3901-98-100635; duck blinds; Chapter 63; EN to heading 6306
Dear Sir:
This is a decision on application for further review of a protest timely filed by Hodes & Pilon, on behalf of their client, Game Tracker, Inc., on July 14, 1998, against your decision regarding the classification of certain duck blinds.
FACTS:
The submitted merchandise, are commercially known as hunting blinds, or duck blinds, and specifically referenced in this protest as “Game Tracker Lodge Hunting Blind (Model Numbers 9720 or 9730, depending on camouflage pattern) and the Quick Shack Hunting Blind (Model Numbers 9710 or 9715, depending upon camouflage pattern). The Protestant states that this merchandise is used by gun and bow hunters to provide camouflage and concealment for the hunter. The duck blinds feature openings on all four sides at shoulder height and in the roof (the Lodge Hunting Blind), permitting the gun or bow hunter to shoot.
Both the Lodge and Quick Shack hunting blind are constructed of a lightweight synthetic (nylon) woven camouflage pattern fabric, hung over a pole frame made of steel (Lodge) or fiberglass (Quick Shack). The blinds measure 57"W x 57"L x 72"H (Quick Shack) or 58"W x 58" W x 75"H (Lodge), and do not feature a floor.
The Protestant emphasizes that the Lodge and Quick Shack Hunting Blinds are marketed and sold exclusively to hunting equipment dealers for retail sale as hunting blinds to gun and bow hunters.
ISSUE:
Whether the subject merchandise is properly classified in heading 6306, HTSUS, which provides for, among other things, tents, or heading 9507, HTSUS, which provides for, among other things, hunting or shooting equipment?
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 9507, HTSUS, which among other things, provides for hunting or shooting equipment. 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).” Although the Protestant is correct in stating that Customs has ruled on numerous occasions that not all “tent-like” textile articles are classifiable as tents, the Protestant does not accurately draw the distinctions which Customs has made in those determinations.
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.
The Protestant states that the fundamental prerequisite of a tent, as a shelter, is that it provide protection from the elements. The Protestant’s understanding of the extent to which a tent must provide protection “from the elements” is, as is explained below, erroneous.
The Protestant makes reference to numerous Customs rulings which he believes emphasize his claim that the subject merchandise should not be classified in heading 6306, HTSUS. In the first series of rulings (HQ 959262, dated May 6, 1997; HQ 960934, dated September 30, 1997 and HQ 087844, dated November 30, 1990) Customs ruled on the classification of “crib safety tents”. Although Customs determined that the merchandise was not classifiable in heading 6306, HTSUS, the rationale in those rulings explained that the crib tents served no function or purpose independent of cribs, for which they were designed, marketed and sold to be attached. Furthermore, HQ 087844, clearly indicated that the purpose of the crib safety tents was not to provide any sort of shelter from the elements, but to protect the child from injuries related to crib falls and nighttime wandering. As such, those rulings are clearly distinguishable from the subject duck blinds.
In another series of referenced Customs rulings, the Protestant states that similar to the merchandise classified therein, the subject duck blinds, do not fit within the parameters of the term “shelter” and are thus classified outside of heading 6306, HTSUS. All of the rulings referenced by the Protestant (HQ 960123, dated November 3, 1997; HQ 959998, dated August 13, 1997; HQ 960030, dated April 23, 1997; HQ 957639, dated May 31, 1995; HQ 956974, dated November 23, 1994; NY A88249, dated October 17, 1996; NY 815653, dated October 31, 1995; and NY 814712, dated September 18, 1995) addressed a variety of “play tents” for children. The classification determinant in those rulings was premised on the fact that what was referenced to as a “tent” could not provide even the most basic protection against the elements. The “tents” were found to be principally designed as play environments for children and for the most part, for indoor use only.
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 neither 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); nor
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).
Heading 6306, HTSUS, is broad enough to encompass a variety of tents. The Protestant’s statement that tents provide “protection from the elements” is overly broad. The tariff 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, not the type of extensive protection mandated in for example, the backpacking tents, where participants hike long distances and survive against the elements by utilizing only those supplies they carry on their backs. (See The Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976).) Backpacking tents must be designed to stand up to the occasional severe weather that backpackers face. An open sided shelter would not fulfill that purpose.
The Protestant states that the subject duck blinds are not designed to protect against the elements and are not viewed as “tents” in the trade. We note however, that in the advertising submitted to Customs, the duck blinds are described as being made of waterproof fabric. Although waterproofing is not a prerequisite for classification in heading 6306, this gives further weight to the argument that this merchandise does meet at least, the minimal threshold requirement for “protection against the elements” and that the concept of “protection” was in the minds of the manufacturers. Although we understand that this merchandise is not sold as “tents”, Customs has to look beyond this particular importer and view the merchandise as a whole, in terms of the “class or kind of merchandise”.
Heading 9507, HTSUS, provides for, in part, hunting or shooting equipment. The legal notes to chapter 95, HTSUS, state:
This Chapter does not cover:
(u) Racket strings, tents or other camping goods, or gloves (classified according to their constituent material)
The Protestant states that as the primary purpose of the duck blind is to act as camouflage or disguise so that the hunter will not be seen by the game, the correct classification for this merchandise is in heading 9507, HTSUS. Although we do not disagree that the camouflage is helpful in the endeavor of disguise, we disagree with premising classification on this rationale. We bring to your attention that the EN to heading 6306 similarly note that the tents classified in that heading also include “military tents”. It would appear that military tents might also be used
for camouflage purposes, but nevertheless, being that they provide at the very least, even basic
protection against the elements, they remain classified in heading 6306, HTSUS. Finally, we note that in referring to heading 9507, we are once again brought back to heading 6306, HTSUS, by the terms of the exclusionary note, which clearly indicates that tents are not covered by chapter 95, HTSUS.
Finally, we note that Protestant claims that the President of Game Tracker approached the National Import Specialist for this commodity in seeking classification advice for this merchandise. Based on that oral advice, Protestant was assured that the proper classification for this merchandise was heading 9507, HTSUS. As stated in section 19 CFR section 177.4, addressing oral discussion of issues:
...Accordingly, the parties will not be bound by any argument or position advocated or agreed to, expressly or by implication, during the conference unless either party subsequently agrees to be so bound in writing. The conference will not conclude with the issuance of a ruling letter.
As such, any oral advice obtained from a Customs officer is not legally binding on Customs.
Based on the foregoing, we conclude that Customs classification of the duck blinds under subheading 6306.22.9030, HTSUSA, was correct.
We are aware that there may be a few rulings which are inconsistent with the determination in this ruling. This office will go forth with the proper revocation procedures once those rulings are properly reviewed.
HOLDING:
The protest should be denied in full and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a) Customs Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days
from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division