# HQ 962984

March 23, 2000

CLA-2 RR:CR:GC 962984 BJB

CATEGORY: Classification

TARIFF NO.: 6306.22.9030; 9503.90.0045.

Mr. Peter A. Powell

C.H. Powell Company

1 Intercontinental Way

Peabody, MA 01960

RE: Dome tent, sun shelter, house-style tent and tunnel, headings 6306
and 9503, HTSUS; EN 63.06; Note 1(u) to Chapter 95.

Dear Mr. Powell:

This is in response to your letter of June 24, 1999, 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 Seneca Sports, Inc., was forwarded to this office
for response. You submitted pictures and specifications, including an
advertisement for three of the subject articles, for our examination. No
samples were provided. We regret the delay in responding.

**FACTS:**

Your literature describes: (1) a dome tent, item \# not provided; (2) a
sun shelter, item #31540; (3) a house-style tent, item \# not provided;
and (4) a tunnel, item #31530. The merchandise is described as
"children's play tents." The dome tent, the sun shelter and the tunnel
are made of brightly colored woven nylon fabric with fiberglass poles
for support. The house-style tent ("house tent"), consists of a
fiberglass pole frame enclosed by a printed, water repellant, nylon
fabric covering. The dome tent measures approximately 4.5 feet by 4.5
feet by 5 feet. The tunnel measures approximately 2 feet by 2 feet by 5
feet. The sun shelter measures approximately 4.5 feet by 4.5 feet by 5
feet, and the house tent measures approximately 4 feet,10 inches by 4
feet by 4 feet, 10 inches.

The dome tent and sun shelter are supported by fiberglass poles. The
fiberglass poles are secured to the dome tent and the sun shelter by
inserting them through fabric loops sewn along the exterior portion of
the tent from the ground towards the center of the dome. There are four
loops, each formed by fabric doubled over and sewn closed with a
reinforced seam parallel to four outer edges of these articles. The four
loops are open at the top and bottom of each seam. The ends of the
fiberglass poles are shown in the accompanying literature as being
inserted into the ground to stabilize the dome tent and the sun shelter.
You state, however, that the fiberglass poles have rounded capped ends
to facilitate the articles' quick and easy movement once erected.

The dome tent has two openings. The first opening operates as the
entrance and exit. The second is an aperture, to which a tunnel may be
attached. Both openings may be secured shut. The entrance/exit opening
has a zippered flap for the bottom half of the opening and an upper flap
that may be raised or lowered above the upper half of the opening. When
the tunnel is not attached, the aperture may also be secured closed by a
nylon fabric flap. This flap is attached above the tunnel aperture on
the exterior side of the panel. When the tunnel is attached to the
aperture, the tent flap may be tied back by nylon straps attached to the
outside of the tent. In the picture it appears to have both a floor and
a fully covered ceiling. You state, however, that the dome tent has no
floor.

The sun shelter is comprised of nylon fabric panels sewn together to
form a unitary covering with four sides and a dome-like roof. The sun
shelter is taller than the dome tent. It has no floor. The sun shelter
is supported by fiberglass poles inserted into four nylon fabric loops,
similar in construction, form, and use to those loops provided on the
dome tent. These loops, however, are longer to accommodate longer
(taller) fiberglass poles. As with the poles on the dome tent, those
here form an apex above the roof of the domed roof. Nylon fabric straps,
sewn to the shelter's roof, are tied to secure the roof to the
intersecting poles. In the advertisement, the tips of the supporting
fiberglass poles, appear to be inserted into the ground. However, you
state that the tips of these poles are also rounded and capped.

A nylon fabric panel covers one side of the sun shelter. A circular
aperture is located toward the center base portion of this panel. A
tunnel may be attached by hook and loop fasteners to this aperture. When
the tunnel is not affixed, a nylon fabric flap, sewn at its upper end to
the exterior side of this panel, may be extended and secured to cover
the aperture. The remaining three sides are approximately three-quarters
open and uncovered from the ground upward. The sun shelter is sold with
or without a picnic table constructed of durable weather resistant
plastic.

The house tent consists of a nylon fabric covering placed over a frame
constructed with flexible fiberglass poles inserted into molded corner
pieces. The house tent has a roof and a door, but no floor. The entry
door/flap to the house tent is opened, or secured closed, by a zipper.
The covering will be printed with a house design showing, *inter alia*,
a shingle roof, windows with flower boxes and doors with doorknobs or
handles. The specifications show that there are no loops at the exterior
base corners of the covering. There is, however, nylon fabric sewn under
each of the four base corners (corner patches). These nylon corner
patches are used to secure the covering to the base of the fiberglass
pole frame.

The tunnel has internal supports that are sewn into its nylon fabric.
These internal supports are sewn into the fabric and provide the
tunnel's circular shape. You represent that the internal supports will
be made of fiberglass. The internal supports do not appear to protrude
from the nylon fabric. You represent that the supports are circular in
form and cannot be inserted into the ground to stabilize the tunnel.
Neither of the two ends of the tunnel are covered, nor can they be
secured shut. You have represented that this article is a separate,
unit, and that it is packaged, shipped, entered and intended for sale
separate from the dome tent, the sun shelter, and the house tent.

The literature indicates that these products are for outdoor use. You
have indicated that each item, not just the tunnel, will be entered and
sold separately.

**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:

90. 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 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 determined that articles similar to the instant
merchandise were classifiable under 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.
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,
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.

∗ ∗ ∗ ∗ ∗

In HQ 089149, dated July 30, 1991, Customs ruled 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 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. The subject articles that meet the
definition of a tent, should be, pursuant to Note 1(u) to Chapter 95,
excluded from classification in Chapter 95; regardless of their claimed
use.

In accordance with the aforecited rulings, the dome tent, the sun
shelter, the house tent, and the tunnel must be examined to determine
whether they meet 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 toys.

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.

All four of the articles are covered with 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.

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 constructed with nylon fabric treated to provide a minimum
level of water repellant protection. Moreover, the specifications and
literature you've provided both specify that these articles are intended
for some outdoor use.

EN 63.06(4), does not require that tent fabric be "coated, covered, or
laminated, or of canvas." However, where all of the articles are in fact
treated to be water repellant, their treatment reflects intended outdoor
use.

The present articles are covered with brightly colored cloth, or as in
the case of the house tent, a printed design on the exterior panels to
appear like a small house. 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, can
substantively alter the nature of the article. Thus, whether an article
is red, yellow, camouflage, or painted with a brick pattern does not
alter the fact that it is still a tent.

The dome tent, the sun shelter and the house tent are held erect by a
flexible frame or skeleton. Each frame is constructed of fiberglass
poles resistant to the corrosive effects of continuous outdoor use.
There is no apparent danger that the corrosive effects of oxidization or
metal fatigue will occur even with extended exposure to outdoor use.
This being noted, there are no requirements that a tent frame must be
treated to prevent any particular degree of oxidization or corrosion.

In fact, there is no requirement that tent poles be capable of
withstanding any particular degree of 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 fiberglass poles as supports, does however, provide evidence that
the structural frame can readily withstand moisture, moulding, and
decay, and demonstrates an intention that the articles are intended to
withstand some continued outdoor use.

The dome tent, the sun shelter and the house tent are all
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 house tent, the
slipcover-like textile "play house" in HQ 959998, had no structure
unless the article was placed over a card or similar table.

In HQ 954239, the toy bed tent had elastic corners designed to fit a
standard sized children's bed mattress. The bed tent was also designed
to function solely indoors. It was also made of a "flimsy" fabric, was
not coated or treated to withstand even a light rain or shower, and had
a porous roof. None of the subject articles mirror these features.
Although the subject house tent also has four corners, they are made of
nylon fabric and are designed to "fit to \[the fiberglass\] frame" and
not to a child's mattress. Moreover, unlike the present articles, the
bed tent was not supported by an interlocking fiberglass pole frame with
a sealed roof and securable tent flaps.

Having determined that the dome tent, the sun shelter, the tunnel, and
the house tent are all covered by some flexible material, and are
sustained by a durable frame/skeleton, it remains to determine whether
they also provide a minimum amount of shelter.

The dome tent, the sun shelter, and the house tent provide ventilated
and shaded enclosures, providing a child cover, whether on a beach or in
the backyard. The dome tent and the house tent both have defined roofs,
securable zippered tent flaps, and flexible weather resistant frames to
protect their occupants in the event of a light shower, an errant garden
hose, or hot sun at the beach. The sun shelter is open on three sides,
but otherwise has these attributes.

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 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.

Further, the term "protection against the elements" has been interpreted
by Customs to include protection from insects. This interpretation is
consistent with the EN to heading 6306, HTSUS. See also HQ 959998, 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 959998 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 Customs determination that
the heavily exposed, meshed enclosure in HQ 959998 was classifiable as a
tent. Consistent application of this determination leads us to conclude
that the mesh vented segments included on the house 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. They also
provide some shade protection against the sun, while ensuring air
circulation during a hot summer day. The fact that the subject articles
may be zippered securely closed, but are not recommended as shelter
against thunderstorms, does not negate their identities as tents or
their ability to protect against some recognized elements.

In a telephone conversation with our office, your broker asserted that
the subject articles are toy playhouses or slumber tents, which lack
various structural features including floors, or any mechanism to secure
the frames and shells 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.

Although substantially open on three sides, the sun shelter still
provides a minimal amount of protection from some elements, including
the hot sun. The intersecting fiberglass pole frames and rain repellant
nylon roof, further secured at an apex with nylon straps attached to the
top of the shelter's canopy, provides a stability that, as you stated,
enables the user to move the sun shelter and the other articles at will.
The ease and versatility with which the sun shelter may be moved
enhances the protection it offers from changing exposures to the sun and
from directional winds throughout the day. We note that "beach use" is
within the EN description of "tent." Customs has classified cabanas
within heading 6306, in HQ 089237 and HQ 953684.

Customs was informed, through statements made in conversations with your
broker, that each of the subject articles is imported, packaged,
shipped, and sold separately. Entered as singular or separate units,
none of the present articles constitutes a "combined play environment,"
as discussed in HQ 960123. According to Seneca Sports, Inc.'s broker,
consumers may mix and match the articles, however, each article is
distinct upon entry and packaged separately.

In the case of these three articles, it is our view that the parameters
for classification in heading 6306, have been met for the following
reasons:

1.  The water repellant, nylon fabric construction is not flimsy. The
    articles are suitable and intended for some outdoor use;

2.  The house and dome tents are designed with roll-up, zippered and
    securable front door flaps, rain repellant roofs. They and the sun
    shelter have flexible frames and are designed to provide some
    minimal protection against the elements of sun, sand, and a light
    breeze.

As we have concluded that the dome tent, the sun shelter and the house
tent are classifiable in heading 6306, there is no need to discuss
classification in heading 9503. *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.

Heading 6306, specifically provides for tents. The tunnel described by
the broker, appears to meet the general description of "tent" provided
for in EN 63.06 and numerous heaquarters rulings. The tunnel is
sustained by a frame/skeleton, is covered by flexible material, and
provides a minimum amount of shelter. However, the tunnel is not used to
provide even minimal shelter. It is circular and bends and rolls with
the child as s/he crawls. For these reasons, we define the term "tent"
for tariff purposes to exclude this circular tunnel. Thus, this tunnel
is not classifiable in heading 6306, and we must determine whether it is
classifiable in heading 9503.

Other than providing amusement for young children to crawl in and out
of, the tunnel has no other apparent purpose. If it were sold with a
tent, the tunnel could very well be classifiable under heading 6306,
HTSUS, as Customs determined with a similar article, in HQ 963574,
(9.24.99).

**HOLDING:**

The dome tent, the sun shelter and the house tent at issue are provided
for under subheading 6306.22.9030, HTSUS, which provides for tents, of
synthetic fibers, other. The tunnel is provided for under subheading
9503.90.0045, HTSUS, which provides for "Other toys and models," as long
as it is entered and sold separately. The quota category for the dome
tent, the sun shelter and the house tent 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](http://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