CLA-2 RR:CR:TE 962408 jb

Ms. Saralee Antrim-Saizan
Carmichael International Service
533 Glendale Boulevard
Los Angeles, CA 90026-5097

RE: Classification of a "Slumber Hut"

Dear Ms. Antrim-Saizan:

This is in response to your letter, dated January 28, 1998, on behalf of your client, PlayHut, Inc., wherein you request a classification determination under the Harmonized Tariff Schedule of the United States (HTSUS), for what you refer to as a "Slumber Hut". A sample was submitted to this office and will be returned under separate cover.

FACTS:

The submitted merchandise, referenced style number 71761, the "Slumber Hut", measures approximately 72"X36"X40" and is designed to fit over a standard twin size mattress. It is specially equipped with four elasticized straps at each corner to facilitate attachment of the play tent to a mattress. When the fabric for this merchandise was examined by the Customs Laboratory, their analysis indicated that the fabric for this merchandise weighs approximately 79.1 g/mý, and is composed of 100 percent filament nylon plain woven fabric with a light coating of clear plastic which is not visible to the naked eye. Flexible steel spring loops have been sewn into the edges of this merchandise, providing both structural support and a mechanism by which the Slumber Hut is erected. Because of the steel spring supporting members which enable the structure to spring back and forth from its original shape, this type of product is referred to as a "pop-up" structure. The Slumber Hut features steel spring supports which can be twisted into loops which collapse the structure into a flat shape, and facilitate its storage in a carrying bag for easy transport. The Slumber Hut may also be erected on the floor and comes equipped with a fabric tunnel which provides additional play value to the play enclosure. The Slumber Hut contains several knit man-made fiber mesh panels toward the top of the structure which provide both an opening from which children can view out and light can come in.

The literature you have submitted with the sample indicates that this product is for indoor use and that it may be joined with other play structures for additional play activities.

ISSUE:

Whether the subject merchandise is properly classified in heading 6306, HTSUS, which provides for, among other things, tents, or heading 9503, HTSUS, which provides for, among other things, other toys?

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 9503, HTSUS, which among other things, provides for other toys. 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)."

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. 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 not 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); or

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). Although the tariff for heading 6306, HTSUS, 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. In the case of the subject merchandise the fabric construction for these play tents preclude its classification in heading 6306, HTSUS, for the following reasons:

1. The fabric is of flimsy construction and would not be suitable or appropriate for outdoor use; 2. The openwork windows, which are not designed with any rain flaps, would expose the whole enclosure to wind, sun and rain.

Additionally, we note that although there is no mechanism by which this tent can be anchored to the ground to secure its position, this merchandise does feature something very particular, that is, four elasticized straps at each corner to facilitate its attachment to a mattress. Certainly, these added features are a clear indication that this merchandise is intended for use in an indoor, rather than an outdoor, environment.

Chapter 95, HTSUS, provides for, among other things, toys. Although the term "toy" is not defined in the tariff, the EN to chapter 95, HTSUS, state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys", this term has been interpreted by Customs as equating "toys" with articles "designed for the amusement of children and adults." Such design for the amusement of children or adults must be corroborated by evidence of the article's principal use.

In Headquarters Ruling Letter (HQ) 960123, dated November 3, 1997, Customs classified similar merchandise in chapter 95, HTSUS. The merchandise therein consisted of two cube- shaped components, two tunnel shaped components and a house-shaped component. All components were attachable to one another and had openings to facilitate a child being able to climb in and out from one component to another. Because the articles were attached together and formed a myriad of areas for children to explore, Customs determined that the article was principally designed to amuse. We believe the same logic applies to the subject merchandise. That the subject merchandise is designed principally for indoor use is clear by the presence of the four elasticized corners which help to secure this article to a mattress. In addition, this article comes equipped with a fabric tunnel which provides additional play value. As such, this merchandise is similarly classified in chapter 95, HTSUS.

Based on the foregoing, we conclude that the subject merchandise is properly classified in heading 9503, HTSUS, which provides for, among other things, other toys.

HOLDING:

The subject merchandise is properly classified in subheading 9503.90.0045, HTSUS, which provides for, "other toys: reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: other: other toys and models." The applicable general column one rate of duty is "Free".

Sincerely,


John Durant, Director
Commercial Rulings Division