CLA-2-63:OT:RR:NC:N3:351
Mr. Armen Kouleyan
Exxel Outdoors, Incorporated
300 American Boulevard
Haleyville, AL 35565
RE: The tariff classification of tents, sleeping bags, a compass, backpacks, binoculars, and a water bottle, from China
Dear Mr. Kouleyan:
In your letter dated Jan. 10, 2011, followed up with a submission of samples received in our office on Feb. 8, you requested a tariff classification ruling.
You submitted four samples of tents. Packaged with some were various other items: a sleeping bag, a compass, a magnifying glass, a pair of binoculars, and a water bottle. While your letter seems to address the classification of the tent only, we shall classify all the items.
It is the opinion of this office that, although packaged and sold as a unit, the tents and the other items do not form a set for tariff purposes. The Explanatory Notes, which constitute the official interpretation of the Harmonized Tariff Schedule of the United States Annotated (HTSUS) at the international level, state in Note X to General Rule of Interpretation 3(b) that the term “goods put up in sets for retail sale” means goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking.
This assortment fulfills the requirements of (a) and (c) above, but we believe that it fails (b). The function of each part does not join that of the others in a way that might be interpreted as meeting a particular need or carrying out a specific activity. The tent, for instance, may be used without any of the other items. Each item may be used by itself. The needs and activities are entirely independent of each other. These are collections of related items, but not sets for tariff purposes; therefore, each item will be separately classified.
You submitted four tents in retail packaging. They are all the same, according to your letter. They are 5’ x 4’, but also represent the same tent in 4’ x 3’ and 5’ x 3’ versions. They are made of man-made fibers, dome-shaped, with exterior pole frames.
You claim that these tents are backpacking tents, classifiable in subheading 6306.22.1000, HTSUS, a duty-free provision. In Newman Importing Company, lnc. v. United States, 76 Cust. Ct. 143, CD 4648 (1976), the Court held that backpacking was a sport. Accordingly, Customs (now Customs and Border Protection) promulgated guidelines, most recently revised in TD 86-163, to distinguish between tents for backpacking and all other tents. These guidelines focus mostly on the size and weight of the tent, reflecting the needs of a backpacker to minimize both. The instant tents, having been built and designed for children, easily fall within these size and weight guidelines.
Regarding the size and weight standards, we must point out that they are the standards for adult tents. There are no standards for children’s backpacking tents, no mention of them in the court case or the guidelines. However, we shall examine whether the tents meet the primary criterion in the guidelines: they must be specifically designed for the sport of backpacking. You state that they are.
You cite as precedent New York Ruling Letter G81291, dated Oct. 3, 2000. The two tents in that ruling were classified as backpacking tents and were described as follows:
The samples submitted are two persons Kid’s Backpacking Tents, item numbers 9556A604K Pup Tent and 9556-605K Dome Tent. Item number 9556A604K Pup Tent is made of nylon woven fabric with a polyethylene sheeting floor. The floor area is 27 square feet. It weighs 4.4 pounds. It has a carry size of 15-3/4 inches long by 4-1/2 inches in diameter and a center height of 35 inches.
Item number 9556-605K Dome Tent is constructed of nylon woven fabric with a polyethylene sheeting floor. The floor area is 30 square feet. It weighs 5.7 pounds. It has a carry size of 25-1/2 inches long by 4 inches in diameter and a center height of 42 inches.
You state, “Clearly our tents at issue here are far better designed to accommodate the specific needs for backpacker . . . .” The descriptions in the ruling are minimal, concentrating on the size of each tent. No other records exist in this case, having been destroyed on Sept. 11, 2001. The presumption must be that these tents were determined to be specifically designed for the sport of backpacking.
You also refer to Headquarters Ruling 087116, dated July 7, 1990, which classified the “Fun Tent,” a children’s tent, as a tent for general use (subheading 6306.22.9030), not as a backpacking tent. The Fun Tent met the size and weight guidelines of TD 86-163. You state that this ruling does not explain why this tent was not classified as a backpacking tent and contend that no specific reason was given. We disagree, based on the following language from that ruling:
Before a tent can be considered a backpacking tent, it must be designed for the sport of backpacking. The “Fun Tent” is designed for indoor/outdoor fun by small children. It is clear from the illustrations on the container that the tent is meant for use either in the living room, or under the watchful eye of an adult in the safety of one’s own backyard. It is not meant for ...traveling on foot in relatively wild areas and maintaining oneself with supplies and equipment carried on one's back.
It is this reasoning that we use in the instant case. While the tents in the instant ruling request meet the size and weight requirements for backpacking tents, we do not believe they are actually designed for the sport of backpacking. In your letter you state that it is a “faulty perception” that backpacking tents must be made for extreme conditions, yet that is exactly what is required. In your letter you equate backpacking with hiking, which is not what the Court said in Newman. In its holding the Court expressly stated:
At this point I note specifically that the use of a tent for shelter is part of the sport of backpacking, which encompasses not only the act of walking with a pack on the back but all the activities associated with the maintenance of the individual while away from “civilization.”
Further, the Court stated that “...backpacking is the activity of traveling on foot in relatively wild areas and maintaining oneself with supplies and equipment carried on one’s back.” The Court also spoke of “challenging and skillful recreation.” While we agree with your claim that children can participate in the sport of backpacking, we are not so sure that their parents would want them sleeping in a separate tent “in relatively wild areas,” as opposed to sleeping in the same tent with the adults. The assumption is that children would not be backpacking without adults.
We also note that the backpacks and sleeping bags are of a generic nature, more for general camping than for the sport of backpacking. In the same vein, the binoculars, compass and magnifying glass included with the tents are not serious outdoor or scientific equipment, even for a child.
The applicable subheading for the children’s tents will be 6306.22.9030, HTSUS, which provides for Tents: of synthetic fibers: Other, other. The rate of duty will be 8.8% ad valorem.
The sleeping bags are made of woven polyester fabric and are stuffed with polyester batting. They measure 28” x 57”.
The applicable subheading for the stuffed sleeping bags will be 9404.30.8000, HTSUS, which provides for Sleeping bags: Other. The rate of duty will be 9% ad valorem.
The applicable subheading for the magnetic compass will be 9014.10.9000, HTSUS, which provides for Direction finding compasses; other navigational instruments and appliances; parts and accessories thereof: Direction finding compasses: Other: Other: Other. The rate of duty will be 2.9% ad valorem.
The handheld magnifying glass is 4-1/2” tall and 2” in diameter. The applicable subheading for the magnifying glass will be 9013.80.2000, HTSUS, which provides for Hand magnifiers, magnifying glasses, loupes, thread counters and similar apparatus. The rate of duty will be 6.6% ad valorem.
The backpacks have an outer surface of textile materials and two shoulder straps. The applicable subheading for the backpacks will be 4202.92.3020, HTSUS, which provides for Travel, sports, and similar bags, with outer surface of textile materials, other, other, of man-made fibers, backpacks. The rate of duty will be 17.6% ad valorem.
The applicable subheading for the binoculars will be 9005.10.0080, HTSUS, which provides for Binoculars, monoculars, other optical telescopes, and mountings therefore; binoculars; other. The rate of duty will be free.
The applicable subheading for the water bottles of plastic material will be 3924.10.4000, HTSUS, which provides for Tableware, kitchenware…of plastics: tableware and kitchenware: other. The rate of duty will be 3.4% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.
The samples will be returned as you requested.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at (646) 733-3102.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division