OT:RR:CTF:FTM H317327 PJG
Center Director
U.S. Customs and Border Protection
Apparel, Footwear & Textiles CEE
5600 Pearl Street, 3rd Floor
Rosemont, Illinois 60018-5213
Attn: Karen Matei, Supervisory Import Specialist
RE: Application for Further Review of Protest No: 2704-19-102875; Tariff classification of tents
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of
Protest No. 2704-19-102875, timely filed on April 2, 2019, by Eteng Technology Limited (“Protestant”). This decision concerns the tariff classification of certain outdoor tents under the Harmonized Tariff Schedule of the United States (“HTSUS”). A sample of the merchandise from the subject entry was considered by U.S. Customs and Border Protection (“CBP”) and will be returned to the port.
FACTS:
The Protestant describes the merchandise, in relevant part, as a 1–2-person outdoor camping folding tent made of manmade textile materials. The tent is imported together with a zippered carrying case with two short handles. The merchandise was entered on February 8, 2018 and classified under subheading 6306.22.10, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Backpacking tents.” CBP reclassified the merchandise, and the entry was liquidated under subheading 6306.22.90, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other.” Protestant claims that the merchandise should be classified as entered.
The Protestant provided the following product specifications for the tent:
The net weight of the tent is 5.5 pounds net. The gross weight is 6.87 pounds.
The floor area is 6.66 feet by 6.66 feet for a total of 44.3 square feet.
The carry area is 18.11 inches in length by 5.11 inches in width by 11.02 inches in height for a total of 1019 cubic inches.
Upon examination of the sample, CBP determined that the floor of the tent measures
approximately 6 feet by 6 feet, which is a total of 36 square feet, and that the tent, poles, and carrying case together weigh 3.75 pounds. The carrying case alone weights one ounce. CBP measured the carrying case that is imported with the tent and it measures 23 inches in length, 6 inches in width, and 5 inches in height.
ISSUE:
Whether the tents are classifiable under subheading 6306.22.10, HTSUS, which provides for backpacking tents, or subheading 6306.22.90, HTSUS, which provides for other tents.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification and rate and amount of duties chargeable. The protest was timely filed on April 2, 2019, within 180 days of liquidation of the entry. See 19 U.S.C. § 1514(c)(3).
Protestant alleges that Further Review of Protest No. 2704-19-102875 should be accorded pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise. We find that Further Review of Protest No. 2704-19-102875 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. 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 GRIs may then be applied.
The 2018 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:
6306.22.10 Backpacking tents
6306.22.90 Other
GRI 5 provides, in relevant part, as follows:
In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
The EN to GRI 5(a) states, in relevant part, as follows:
(I) This Rule shall be taken to cover only those containers which :
(1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article they contain;
(2) are suitable for long term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;
(3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;
(4) are of a kind normally sold with such articles; and
(5) do not give the whole its essential character.
* * *
The EN to 63.06 states, in relevant part, as follows:
This heading covers a range of textile articles usually made from strong, close woven canvas.
* * *
(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.
The heading excludes umbrella tents of heading 66.01.
* * *
CBP and the Protestant agree that the tent and its poles are classifiable under subheading 6306.22, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers.” See EN 63.06 (stating that tents are classified in heading 63.06 “whether or not they are presented complete with their tent poles…or other accessories”). The dispute lies at the eight-digit level. Specifically, whether the product is classifiable as a backpacking tent or a tent used for a different purpose.
The Protestant alleges that the instant product is identical to the backpacking tent that was classified in New York Ruling Letter (“NY”) N302567, dated March 5, 2019. The product in NY N302567 was a 1–2-person, four season, manmade textile fabric, outdoor camping, waterproof tent with a backpack that was designed specifically “to provide storage, protection, organization, and portability to tent and poles.” The tent had a net weight of 5.5 pounds and a floor area of 44.3 square feet. The carry area was 18.11 inches (length) by 5.11 inches (width) by 11.02 inches (height). The ruling states that “[t]he poles fold into a drawstring bag that is attached to the backpack by woven textile adjustable straps and the tent when folded and stored inside the backpack.” CBP determined that the tent together with the backpack formed a composite good and classified the merchandise pursuant to GRI 3(b) in subheading 6306.22.10, HTSUS, which provides for backpacking tents.
19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.” Furthermore, 19 C.F.R. § 177.9(b)(2) states that “[e]ach ruling letter setting forth the proper classification of an article under the provisions of the Harmonized Tariff Schedule of the United States will be applied only with respect to transactions involving articles identical to the sample submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter.” The merchandise that was classified in NY N302567 is not identical to the subject merchandise for three reasons. First, the subject tent is imported with a zippered carrying case with two short handles, whereas the tent that was the subject of NY N302567 was imported with a backpack. Second, the floor area measurement of the subject tent, as determined by CBP, differs from the floor area of the tent in the NY ruling letter. Third, the weight of the tent together with its poles, and carrying case, as determined by CBP, is 3.75 pounds, which is notably less than the net weight of the tent in the NY ruling. Therefore, NY N302567 is not applicable in this case.
In order to properly classify the subject merchandise at the eight-digit level, we must distinguish between backpacking tents and tents used for a different purpose. The term “backpacking tents” is not defined by the HTSUS. In Newman Importing Co. v. United States, 415 F. Supp. 375 (Cust. Ct. 1976), the court held that backpacking was a sport and tents used in pursuit of backpacking could be considered sport equipment under the Tariff Schedule of the United States (the predecessor to the HTSUS). As a result, U.S. Customs (the predecessor to CBP) published guidelines in C.S.D. 79-108, dated August 21, 1978, to distinguish between backpacking tents of item 730.20, TSUS, which provided for “sport equipment,” and tents used for other purposes. In 1986, U.S. Customs, issued a Federal Register Notice revising the guidelines. See T.D. 86-163, 51 Fed. Reg. 30346 (Aug. 26, 1986). CBP continues to apply these guidelines to determine whether a product is classifiable as a backpacking tent. See Headquarters Ruling Letter (“HQ”) H311492 (Oct. 30, 2020); HQ H250306 (Dec. 3, 2014); HQ 961995 (Oct. 25, 1999); HQ 951263 (June 15, 1992); HQ 086076 (Feb. 15, 1990); and HQ 086091 (Jan. 11, 1990). The guidelines in T.D. 86-163 provide the following criteria for classification as a backpacking tent:
(1) It must be specially designed for the sport of backpacking.
(2) It must be composed of nylon, polyester, or any other fabric of man-made fibers.
(3) If designed for 1 or 2 persons, the tent must meet the following criteria:
(a) Have a floor area of 45 square feet or less, and
(b) Weight 8 1/2 pounds or less, including tent bag and all accessories necessary to pitch the tent, and
(c) Have a carry size of 30 inches or less in length and 9 inches or less in diameter. If other than cylindrical in shape, the tent package must not exceed 1,900 cubic inches.
(4) If designed for 3 or 4 persons, the tent must meet the following criteria:
(a) Have a floor area of 65 square feet or less; and
(b) Weigh 12 pounds or less, including tent bag and all accessories necessary to pitch the tent; and
(c) Have a carry size of 30 inches or less in length and 10 inches or less in diameter. If other than cylindrical in shape, the tent package must not exceed 2,350 cubic inches.
Any tent with a floor space of more than 65 square feet and a standing height of more than 60 inches is a tent designed for general recreational use.
If any part of the tent package (including tent skin, frame, tent bag, accessories or packing) is not imported in the same shipment with all remaining parts, in order to receive the benefit of the sport equipment classification for such part, the importer must supply Customs with a sample of the complete tent package so a determination of compliance can be made.
The subject merchandise meets criteria 2 and 3 of the guidelines but does not meet the first criterion. Specifically, it is a 1–2-person tent that is composed of manmade fibers, has a floor area of 36 square feet, the tent and all of its necessary accessories weigh 3.75 pounds, and this tent has a carry size of 690 cubic inches. However, it is not sufficient for the tent to meet the quantitative criteria. See HQ 087116 (July 17, 1990). It must also be specially designed for the sport of backpacking. See id. The Protestant does not provide any evidence that the physical characteristics, design, or marketing of the tent indicate that it is specially designed for backpacking. See e.g., HQ 961995 (Oct. 25, 1999) (stating that “[t]he tents are…weather resistant, stable, durable, easy to assemble and highly portable” and the “tents’ outer surface is made of waterproof, lightweight, durable, fire resistant nylon taffeta that has been treated for sun protection and netting specially designed for insect repulsion and ventilation”).
CBP has previously stated that “[b]ackpacking tents must be designed to stand up to the occasional severe weather (including hard and extended rain) that backpackers face.” See HQ 956042 (July 5, 1994). The Protestant contends that the tent is a waterproof, four season tent, which would suggest that it can withstand a variety of outdoor weather conditions. We note that CBP poured water on the sample tent and it soaked through. Moreover, CBP examined the assembled tent after it was left outside during a rainstorm and observed several puddles of water on the tent floor. While laboratory testing would be required to indicate whether the tent floor is waterproof, CBP has conclusively determined that the walls of the tent are not waterproof, which would be needed for weather protection while camping. Moreover, the tent’s lack of durability is evidenced by the flimsy nature of the poles, which broke while CBP was assembling the tent. Finally, the seams are not inverted to keep the interior dry during inclement weather. Considering the reasons provided above, we conclude that the subject merchandise is not specially designed for backpacking. Accordingly, the subject merchandise is classified in subheading 6306.22.90, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other.”
As noted above, the tent is imported with its carrying case. In HQ 959630, dated October 1, 1996, we addressed the classification of a tent with a carrying bag that was “designed to hold the [product], …[which was] made of the same material as the roof and pole sleeves and … imported and sold with the article.” We concluded that the carrying bag was classified pursuant to GRI 5(a) with the tent in heading 6306, HTSUS. Similarly, in the instant case, we look to the language of GRI 5(a) and EN to GRI 5(a). Essentially, GRI 5(a) states that containers that are “specially shaped or fitted to contain a specific article…, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith.” The rule further states that GRI 5 “does not…apply to containers which give the whole its essential character.” EN to GRI 5(a) provides the interpretation of this rule at the international level. Consistent with GRI 5(a) and the EN to GRI 5(a), the subject carrying case is specially shaped to accommodate the tent and its poles. Moreover, it’s durability is comparable to the subject tent. See EN to GRI 5(a) (the containers “are designed to have a durability comparable to that of the articles for which they are intended”). As we noted above, the subject tent is not very durable, as evidenced by its flimsy poles. Similarly, while the carrying case is intended to transport the tent, the carrying case is also not durable, as evidenced by the zipper to the carrying case breaking while CBP was trying to store the tent. Moreover, the carrying case is imported with the tent and is sold with the tent. See GRI 5(a). Finally, the carrying case does not give the overall merchandise its essential character because the tent, including its poles, provides the bulk of the materials in the set, exceeds the weight of the carrying case (one ounce), and is indispensable to the core and structure of the set because it is the component that provides shelter. Therefore, the essential character of the product is the tent rather than the carrying case. Accordingly, the carrying case is classified with the subject tent under heading 6306, HTSUS, and specifically, in subheading 6306.22.90, HTSUS.
HOLDING:
Under the authority of GRIs 1 and 5(a), the tent, including its poles and carrying case are classified under heading 6306, HTSUS, and specifically, in subheading 6306.22.90, HTSUS, which provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: Tents: Of synthetic fibers: Other.” The 2018 column one, general rate of duty is 8.8 percent ad valorem. Duty rates are provided for convenience and are subject to change.
You are instructed to DENY the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP
personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division