CLA-2 RR:CR:GC 963702 BJB
Mr. Michael Hodge
International Customs Consultancy
The Stables, The Grove, Pipers Lane
Harpenden, Herts, England AL5 1AJ
RE: Nylon pop-up “play” tents; headings 6306 and 9503, HTSUS; EN 63.06; Note 1(u) to Chapter 95.
Dear Mr. Hodge:
This is in response to your letter of January 13, 2000, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of children’s play tents and play houses pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, on behalf of Worlds Apart Ltd., was forwarded to this office for response. Literature containing pictures of the subject articles was submitted for our examination together with your letter of February 15, 2000. Samples of a “Pop-Up Barbie Wendy House,” and a “Buzz Lightyear Pop-up Play Tent,” were also submitted for our examination.
FACTS:
The merchandise is described as “children’s play tents.” The samples submitted are called: “Pop-Up Space Ranger Play Tent (Ranger Tent),” item # 18TS01; and the “Pop-Up Barbie Wendy House (Wendy House Tent),” item # 29BR01. These articles are made of brightly colored woven nylon fabric over a sprung steel frame. The Ranger Tent has four equal sides measuring approximately 13.5 inches wide at the top, 28.5 inches wide in the middle and 36 inches wide at the base. The Ranger Tent stands approximately 42 inches high. The Wendy House Tent measures approximately 33 inches wide by 33 inches long by 47 inches high.
The Ranger Tent is made out of “tough shower resistant nylon.” Approximately one half of one side of the tent is covered with clear vinyl.
An image of the animated movie character, Buzz Lightyear, and the words “Space Ranger,” are printed on the nylon fabric and partially on a vinyl segment of one outer tent wall. The tent is free standing and its sprung steel frame is “coated to prevent oxidization or metal fatigue.” It is advertised as a tent, for “use indoors and Out!” There are nylon “wings” on two of four sides of the tent. These “wings” measure approximately 8 inches by 8.5 inches and are located approximately 12 inches from the ground and approximately 11 inches toward the center of the panel from the outer right and left panel edges. The “wings” are located on the exterior of the two side panels located on either side of the entrance.
The entrance/exit to the Ranger tent is covered by a split flap. The door flap to the tent may be rolled up and kept open by a hook and loop fastener strap. The door flap may also be secured shut by connecting hook and loop fasteners located on the door flap to corresponding receptive points sewn along the edge of the door aperture seam. Near the base, on each of three sides of the tent, segments of ventilation mesh have been sewn into the nylon fabric. There is no bottom floor panel. Each of the outer four bottom corners has a woven nylon strap-type loop to secure the tent to the ground for outdoor use. Each loop is secured to the tent with reinforced stitching. The top of the tent is covered partially by a mesh sunroof in the middle, by shower resistant nylon cloth in two of four corners, and by clear transparent vinyl in the remaining two corners.
The house-shaped Wendy House Tent is also made of “tough shower resistant nylon.” A “T” slit entrance is located at one end of the tent. The entrance may be shut by closing two flaps. The flaps may be secured closed by three hook and loop fastener combinations or kept open by two hook and loop fastener straps (one for the right side and one for the left side). There is a circular aperture in the wall panel opposite the entrance side of the tent. A nylon fabric covered tube or tunnel accessory may be attached securely to fit over this aperture. When the tube or tunnel is not attached, the aperture may be covered by a securable flap. The upper portion of this wall includes a mesh ventilation panel. The roof and floor of this article are constructed of the same “shower resistant” nylon fabric. A vinyl covered picture of the doll character, “Wendy,” appears on each side of two of the four exterior tent walls. A third vinyl covered picture appears on the exterior side of the securable flap used to cover the circular aperture.
ISSUE:
Whether the articles are classified under heading 6306, HTSUS, as tents, or 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 however, 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 articles meet the tariff definition of "tent,” they are 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 classified articles similar to the instant merchandise in subheading 6306.22.90, HTSUS, See 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. In a number of other instances, Customs has determined certain fabric covered enclosures distinguishable from these articles, do not constitute tents as provided for in heading 6306. However, in a number of rulings involving merchandise distinguishable from the present articles, Customs has determined for example, that a “slumber-hut,” a multi-unit “play environment,” “a ball pit,” “a ball barrel/tunnel,” and a “slipcover play house,” were classifiable in heading 9503. See, e.g., HQ 962408, dated December 17, 1998, involving a “slumber hut”; HQ 960123, dated November 3, 1997, a “play environment” combination; HQ 956974, dated November 23, 1994, a “ball pit”; and in HQ 959986, dated August 13, 1997, a “slip-cover” play house without frame.
We begin our analysis with the terms of heading 6306, 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.
( ( ( ( (
In HQ 089149, dated July 30, 1991, we held that a play tent was classifiable under subheading 6306.22.90, because the definition of "tent" set forth in the ENs was broad enough to cover many types of tents, including play tents. See, 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.
In accordance with the aforecited rulings, the Ranger Tent and Wendy House Tent must be examined to determine whether they fall within the EN description of "tent," and would therefore, according to Note 1(u) to Chapter 95, be excluded from classification as toys.
The Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 1999, at 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.
Both the Wendy House Tent and the Ranger Tent are made of nylon fabric. Neither heading 6306, nor EN 63.06 (4), requires that the material used to construct a tent conform to a predetermined thickness. Specific information regarding the tensile strength, or thickness of the nylon fabric used for the subject articles has not been provided. However, literature and accompanying packing materials both specify that these articles are intended for some outdoor use and are treated to provide a minimum level of water repellant protection.
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 6306.22.90, 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 articles are advertised as being constructed with “tough shower resistant nylon.”
EN 63.06(4), does not require that tent fabric be “coated, covered, or laminated, or of canvas.” However, both subject articles are, in fact, coated and advertised as “shower resistant,” thus highlighting their intended outdoor use. While popular
children’s movie or doll characters appear on the exterior panels of both subject articles, there is no requirement in any of the heading, section, chapter notes, ENs, or Headquarters rulings, that the application of these characters or in their stead a military camouflage pattern substantively alters or redefines the nature of the article as anything but a tent.
Both of the subject articles are sustained by a flexible frame or skeleton. The flexible metal supports sewn into the seams of the tents are described as “a sprung steel frame,” coated “to prevent oxidisation or metal fatigue. . ..” Although the coating is apparently not sufficient to provide protection for “continuous outdoor use,” there is no requirement or criteria suggesting that a tent frame should or must be treated to such an extent. There is also no requirement under EN 63.06(4) that a tent, “be presented complete with their tent poles, tent pegs, guy ropes or other accessories.” Moreover, there is no requirement that any metal frame or skeleton be treated even to withstand any oxidization (American spelling), or that any ropes used to support a tent be treated against moisture, moulding, or decay. The fact that the sprung metal frames are treated against oxidization, supports the conclusion that these articles are intended for outdoor use. Thus, these articles are clearly distinguishable from the “slipcover-like textile ‘play house,’” classified in subheading 9503.90.00, HTSUS, discussed in HQ 959986, dated August 17, 1997, and the “toy bed tent,” classified in subheading 9503.90.60, in HQ 954239, dated September 14, 1993. In HQ 959986, the slipcover-like textile “play house” had no structure, unless the article was placed over a card or similar table. In HQ 954239, the bed tent was designed to function solely indoors. The toy bed tent was made of a “flimsy” fabric, not coated or treated to withstand any type of showers. This item was also not supported by a “sprung steel frame.”
Having determined that the Wendy House Tent and Ranger Tent are both covered by some flexible material, and are sustained by a frame/skeleton, it remains to determine whether they also provide a minimum amount of shelter.
The Ranger Tent provides a ventilated and shaded enclosure, providing a child cover whether on a beach or in the backyard. The Wendy House Tent has a defined roof, securable tent flaps, and vinyl coverings to protect its occupants in the event of a light shower, an errant garden hose, or the hot sun at the beach.
As indicated by EN 6306, the definition of tents is broad enough to include many types of tents, including those which are not per se, “shelters,” but which do provide protection against the 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. Furthermore, the term “protection against the elements” has been interpreted by Customs to include protection from insects. This interpretation is consistent with the above-referenced EN. See also HQ 959986, dated
December 20, 1996, in which the following rulings discuss the classification of similar merchandise in heading 6306: HQ 956935, dated February 21, 1995, discussing the classification of a sleep screen; and HQ 083789, dated March 31, 1989; HQ 083683, dated March 30, 1989; HQ 084128, dated July 14, 1989; and HQ 084770, dated September 29, 1989, discussing the classification of screen houses. The fact that the tents discussed in HQ 959986, featured a pull down rainfly, an item prominently identified with securing tent flaps against very inclement weather, was determined not to contradict the principal use of the subject merchandise as a screen house. The absence or presence of a pull down rainfly per se, therefore, did not prevent the determination that the heavily meshed enclosure in HQ 959986, was a tent. Consistent application of this determination leads us to conclude that the mesh-vented segments included on the Ranger Tent do not negate the overall character of the article, from being a tent. On the contrary, the presence of the mesh vents affords protection against additional elements including mosquitoes and other flying insects, as well as, provides some shade protection against the sun, while ensuring air circulation during a hot summer day. The fact that the subject articles cannot be sealed and are not recommended as shelter against thunderstorms, does not negate their identities as tents or as protection from some recognized elements.
You assert that the subject articles are playhouses and slumber tents which lack “various structural features including a floor, any mechanism by which any of its openings may be closed or any mechanism to secure the frame and shell to the ground,” and thus, prevent the articles’ classification as tents. However, 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 089149, and 950217. Moreover, these assertions are not entirely confirmed by the facts. The Wendy House Tent for example, has a floor, its entrance and exit have securable flaps, and it is covered with weather resistant nylon fabric. The Ranger Tent does not have a floor. However, it has reinforced nylon loops that may be used to securely affix the tent to the ground. The Ranger Tent, like the Wendy House Tent, also has mesh netting to protect against insects. Both provide shade from the sun. There is a requirement that the enclosure provide some minimal protection from the elements, and that requirement is met here.
You have also asserted that the subject articles are not "tents" because they fail to provide "shelter." However, as indicated in HQ 088644, a tent merely needs to be capable of providing shelter. The descriptive literature submitted, states that "the play house/slumber tent is not intended for camping usage or extended outdoor use."
This and other statements are not dispositive of the fact that these articles are capable of short-term outdoor use commensurate with their inclusion under heading 6306. We
find that the subject articles are covered enclosures capable of protecting their occupants from the hot sun, a light rain shower, light winds, and insects.
In the case of the present articles, it is our view that the parameters for classification in heading 6306, have been met for the following reasons:
The fabric construction is not flimsy. The articles are suitable and intended for some outdoor use;
The tents are designed in most cases with roll up window and door flaps, mesh or vinyl covered windows, or a combination thereof, and securable front doors with hook and loop fasteners, zippers and loop type closures or “T” style door openings with hook and loop fasteners. These features would
allow the tents to provide some minimal protection against the elements of sun, sand, and a breeze.
As we have concluded that the subject merchandise is properly classified in heading 6306, consideration of classification in heading 9503, HTSUS, is not reached. See also, 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. Note 1 to Chapter 95, 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 “Racket strings, tents or other camping goods, . . ..” The subject articles meet the definition of a tent, and therefore should be, pursuant to Note 1(u) to Chapter 95, excluded from classification in Chapter 95, regardless of their claimed use.
HOLDING:
The Ranger Tent and the Wendy House Tent at issue are provided for under classification subheading 6306.22.9030, HTSUS, which provides for tents, of synthetic fibers, other, and carries textile 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