HQ 088644

June 13, 1991

CLA-2 CO:R:C:T 088644 KWM

CATEGORY: Classification

TARIFF No.: 6306.22.9030

Mr. Daniel C. Holland

District Director, Seattle

United States Customs Service

909 First Avenue, Room 2039

Seattle, Washington 98174

Attn: Stanley P. Gustafson, Assistant District Director

RE:Internal Advice Request 80/90; Tariff classification of tents;

Tents for children; Toy tents; Other toys; Eo nomine tents.

Dear Mr. Holland:

We have received your memorandum dated December 18, 1990,

requesting internal advice on the tariff classification of tents

for children. After considering the information provided, and

examining the sample, we have determined that the classification of

the merchandise as a tent of heading 6306, HTSUSA, is correct. Our

analysis follows.

FACTS:

The merchandise at issue here is advertised as the Playskool

Adventure Tent. It is a dome shaped tent made of 100 percent nylon

fabric. Hasbro\'s submission indicates that the nylon has not

received any waterproofing treatment. The tent is erected by

inserting PVC poles into sleeves and/or pockets sewn into the body

of the tent. When the poles are connected they flex in an arch

shape stretching from one corner of the tent to another. Two

crossing arches create the \"dome\" and hold the tent erect. On the

front of the tent is a mesh doorway secured at the bottom by a

hook-and-loop fastener. The rear of the tent features a mesh

window and a flap described as an \"escape hatch\" along the lower

rear wall. At the top is a plastic cap and periscope for peering

out at one\'s enemies.

Hasbro also indicates that only the fabric portion of the tent

is imported. The poles, periscope and packaging are combined with

the tent skin after importation. It would appear that some of this

merchandise was entered as toys of heading 9503 prior to this

internal advice request. Customs has proposed classifying the

tents as tents of heading 6306, HTSUSA.

ISSUE:

Are the tents classified as toys of heading 9503, HTSUSA, or

as tents of heading 6306, HTSUSA?

LAW AND ANALYSIS:

Both Customs and the importer agree that the article is

described as a \"toy tent.\" However, the importer fails to

understand why it is classified as a \"tent\" rather than a \"toy.\"

We will address below the importer\'s arguments and recent Customs

rulings regarding similar merchandise.

The importer\'s argument would appear to be based on the use of

the tent. In a letter dated September 6, 1990, Hasbro points out

that the tent is purchased in toy stores; that it is not

substantially constructed to withstand \"wind, rain, hail, snow . .

.\"; that is does not have stakes, a floor, ropes or zipper closure;

and finally that it is not an article of utility because it

provides no shelter. While Hasbro may be correct in those

statements, they do not act as a bar to classification of the tent

in heading 6306, HTSUSA. Customs classifies merchandise in the

condition in which it is imported. How and where an article is

sold is an ancillary consideration. Not all tents classified in

heading 6306, HTSUSA, would withstand hail or snow, nor do they all

require poles or stakes or even a floor for their effective use.

Neither awnings nor pup tents generally have floors; geodesic dome

backpacking tents generally do not require stakes or ropes for

their use. Hasbro is factually in error when they state that \"\[The

tent has\] no closure of any kind.\" In fact, a hook-and-loop

fastener secures the front door mesh. Finally, a tent such as this

is designed and manufactured to recreate for young persons a

realistic play situation. The instant tent is as capable of

protecting its occupants from the sun, a rain shower, and even

light winds, as many of the exemplars of the Explanatory Notes.

Nor is any article which provides amusement to children

considered a toy for classification purposes. Legal Note 1 lists

several articles which might be considered toys in some cases, but

which we know to be excluded from Chapter 95, HTSUSA. Childrens\'

tents are an example. If the notes did not instruct Customs to

classify tents by their constituent material, each case would have

to be judged against the parameters for classification of \"toys\" as

well as \"sporting goods.\" Instead, the Legal Notes essentially

relieve us of that dilemma.

Hasbro also cites several rulings issued by Customs, and

expresses some confusion regarding how and why the classification

of this article could change from toys to tents. Two of the

Headquarters Ruling Letters (HRL\'s), HRL\'s 002425 and 065417, were

issued prior to the adoption of the HTSUSA. Under HRL 002425 and

065417, distinctions were made regarding the size and limited

functional capacity of some tents. Those rulings are no longer

applicable. Not only has the text of the nomenclature changed, but

the rules and rationale for classifying goods under the HTSUSA

often lead us to decisions contrary to conventional TSUS wisdom.

Such is the case here.

HRL\'s 086867 and 086969 are also mentioned by Hasbro. Neither

ruling, in our opinion, details minimum qualifications for

classification as tents. Both rulings, and others issued under the

HTSUSA, describe tents with features different from those found on

the Adventure Tent. The absence of those features in this case

does not preclude classification as tents. We find that the cited

rulings are useful, but not so restrictive that the Adventure Tent

be barred from classification as a tent.

Lastly, classification under the Harmonized Tariff Schedule of

the United States Annotated (HTSUSA) is made in accordance with the

General Rules of Interpretation (GRI\'s). The systematic detail of

the harmonized system is such that virtually all goods are

classified by application of GRI 1, that is, according to the terms

of the headings of the tariff schedule and any relevant Section or

Chapter Notes. Heading 6306, HTSUSA, provides for \"tents.\" Having

determined that the instant article is considered a \"tent\" as that

term is used in the HTSUSA, heading 6306 provides classification by

application of GRI 1.

Even if we were to consider the tent equally a \"tent\" and a

\"toy\", the resulting classification would not change. In that

case, two headings, both 6306, HTSUSA, and 9503, HTSUSA, would

provide for the merchandise. 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\'s may be

applied, taken in order. GRI 3 provides that the heading which

most specifically describes the goods shall be preferred. In this

case the alternatives would be the provision for \"tents\" (heading

6306, HTSUSA) and for \"other toys\" (heading 9503, HTSUSA).

Clearly, the tents provision is the more specific.

HOLDING:

The merchandise at issue, the Playskool Adventure Tent, is

classified in heading 6306, HTSUSA. Its size, features, and

particularly it use, do not prevent us from considering the

merchandise to be a tent within the scope of heading 6306, HTSUSA.

As such it is excluded from Chapter 95, HTSUSA by virtue of Legal

Note 1(u) to Chapter 95, HTSUSA. The HTSUSA requires that products

be classified by different criteria than may have been applicable

under the TSUS.

Sincerely,

John A. Durant

Director

Commercial Rulings Division