CLA-2 RR:CR:GC 963018 BJB
Mr. Rolando E. Portal
abc Distributing, Inc.
P.O. Box 611210
North Miami, FL 33261-1210
RE: Playhouse and tunnel; dome structure; headings 6306 and 9503, HTSUS; EN 63.06; Note 1(u) to Chapter 95.
Dear Mr. Portal:
This is in response to your letter of April 16, 1999, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of a coated, nylon fabric-covered play house and tunnel 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 a sample and picture of the coated, nylon fabric-covered play house and tunnel attachment (“play house and tunnel”). In your ruling request, this article is identified as item #47977. The catalog picture you have attached to your request identifies this article as item # 36727. Both the play house and the tunnel are covered with nylon woven fabric coated on the exterior side with a clear plastic material. When assembled, the play house forms a covered, dome-like structure with a covered tunnel attachment. The play house measures 44 inches long by 44 inches wide by 39 inches high. The tunnel is 59 inches long and 19 inches in diameter. The play house has a floor of polyvinyl/plastic sheeting. Plastic poles and plastic connectors are assembled to construct the play house and tunnel frames.
The play house tent has four sides and three apertures. The first aperture is a slit opening at the center of the front panel. This panel is divided to form a right and a left flap. These flaps extend from the top of the front panel to its baseline. They are secured closed by the use of hook and loop patches located at corresponding points along the vertical edges of the two flaps. The flaps may be further secured by tying plastic coated strips sewn at the center of the play house baseline edge, to similar strips sewn to the center base corners of the two flaps.
The second aperture is located on the side left of the panel containing the slit opening. This opening is circular in shape and may be covered with a plastic-coated nylon fabric flap secured shut by hook and loop patches. This flap may also be held open if rolled and secured by tying two nylon strips attached to the exterior of the panel, located at the top center of the aperture. The tunnel extension may be attached at this opening by the hook and loop patches located along the circumference of aperture and on the outer edge of the tunnel.
Located on the tent panel to the right of the slit opening, is a third aperture. This window-like opening is circular and approximately 6 inches in diameter. This opening may also be covered with a plastice-coated nylon flap. A plastice-coated nylon strip is attached to the bottom center of the flap to facilitate closure.
Additional support for the play house covering is provided by tying coated nylon strips to an apex formed by intersecting tent poles. The poles form a dome-like shape and intersect above the roof of the play house. The tie-strips are sewn to the exterior top center of the roof covering and tied the poles at this apex. The poles are secured to the play house by inserting them through fabric loops sewn along the exterior portion of the play house from the ground towards the center of the play house dome. There are four loops, each formed by fabric doubled over and sewn closed with a reinforced seam parallel to four outer edges of the play house covering. The ends of the tent poles are placed into reinforced nylon webbed corners sewn to the exterior base corners of the play house structure.
The play house and the tunnel are imported and sold together.
ISSUE:
Whether the play house and tunnel are classifiable under heading 6306, HTSUS, as tents, 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 article meets the tariff definition of "tent," it is 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 963765, dated April 5, 2000; HQ 963760, dated April 5, 2000; HQ 963779, dated March 31, 2000; HQ 962983, dated March 29, 2000; HQ 962984, dated March 23, 2000; HQ 963702, dated March 23, 2000; 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 article, 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.
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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. If the subject article meets the definition of a tent, it should be, pursuant to Note 1(u) to Chapter 95, excluded from classification in Chapter 95; regardless of its claimed use.
In accordance with the aforecited rulings, the play house and tunnel structure must be examined to determine whether it meets 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 a toy.
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.
The play house and tunnel structure is covered with water repellant, plastic coated, 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.
Chapter 63, Note 1, provides that Sub-Chapter I applies only to articles “made up” of any textile material. See the General EN to Chapter 63. The articles are “made up” within the meaning of Note 7 to Section XI (e). They are of “any textile material,” being plastic coated nylon fabric sewn in panels. See also, EN 63.06(4) which includes structures 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.” As we have determined that the play house and tunnel is a tent of heading 6306, Chapter 63, Note 1 controls classification.
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 article is constructed with nylon fabric treated to provide a minimum level of water repellant protection. Moreover, the specifications and sample you’ve provided demonstrate that this article is intended for some outdoor use.
EN 63.06(4), does not require that tent fabric be “coated, covered, or laminated, or of canvas.” However, as noted, the textile covering used here is coated with plastic. Thus, where the play house and tunnel covering is in fact coated with plastic and water repellant, and the structure’s flaps may be secured closed, these elements reflect an intention of outdoor use.
The present article is covered with a solid colored cloth on its roof and side, and vinyl for its floor panel. Its roof and side panels are made of solid, brightly colored panels. 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 a particular color combination, can substantively alter the nature of the article. Thus, whether an article is brightly colored, painted with camouflage colors or a collection of different brightly colored panels, the fact that the article is still a tent, has not been changed.
The article is held erect by a flexible frame or skeleton. The frame is constructed of plastic poles resistant to the corrosive effects of continuous outdoor use. There is no danger that the corrosive effects of oxidization or metal fatigue will occur even with extended exposure to outdoor use, as all of the poles and connectors are made of plastic.
In fact, there is no requirement that tent poles be capable of withstanding any particular degree of oxidization or 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 plastic poles and connectors, to support the structure, does however, provide evidence that the structural frame can readily withstand moisture, moulding, and decay, and also demonstrates an intention that the article is intended to withstand some continued outdoor use.
The article is 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 article, the slipcover-like textile “play house” in HQ 959998, had no structure unless the article was placed over a card or similar table.
Having determined that the article is covered by some flexible material, and is sustained by a durable frame/skeleton, it remains to determine whether it also provides a minimum amount of shelter.
The subject article provides a ventilated and shaded enclosure, providing a child cover, whether on the beach or in the backyard. The article has a defined roof, tent flaps that are securable by zippers, or hook and loop attachments, and a flexible weather resistant frame to protect its 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
Although this article lacks various structural features, including any mechanism to secure its frame or shell 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 963765, 962984, 963702, 962983, 950217 and 089149.
In the case of this article, it is our view that the parameters for classification in heading 6306, have been met for the following reasons:
The water repellant, plastic coated, nylon fabric construction is not flimsy. The article is suitable and intended for some outdoor use;
The play house and tunnel structure is designed with securable door and opening flaps, and a rain repellant roof. It has a flexible frame and is designed to provide some minimal protection against the elements of sun, sand, and breezes.
As we have concluded that the article is classifiable in heading 6306, there is no need to discuss classification in heading 9503. See also, HQ 963765, dated April 5, 2000; 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 play house and tunnel structure at issue is 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