HQ 965202 - Inflatable Air Bed Play Tent; Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000); NY G88728 Revoked - United States International Trade Commision Rulings

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HQ 965202

October 16, 2002

CLA-2 RR:CR:GC 965202 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.00

Mr. James C. McKelvey
North Pole, Inc.
3333 Yale Way
Fremont, CA 94538-6169

RE: Inflatable Air Bed Play Tent; Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000); NY G88728 Revoked

Dear Mr. McKelvey:

This is in response to your letter, dated June 28, 2001, requesting reconsideration of NY Ruling Letter (NY) G88728, issued to a customs broker on behalf of North Pole, Inc. on April 19, 2001, which classified a children’s inflatable air bed tent in subheading 6306.22.90, Harmonized Tariff Schedule of the United States (HTSUS), as a textile tent. We have reviewed that ruling and, based in part on information obtained from your representatives during a teleconference, now believe it is incorrect.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of the above identified ruling was published on September 11, 2002, in the Customs Bulletin, Volume 36, Number 37. No comments were received in response to the notice.

FACTS:

The merchandise at issue, the “Inflatable Air Bed Play Tent,” (inflatable bed tent) consists of a polyvinyl chloride (PVC) inflatable base and textile (polyester and mesh) enclosure/covering. The base is a single inflatable unit comprised of a mattress-type bottom and a tent frame. The textile covering is draped over the frame and attached to the base with elastic loops to create an enclosure. The mattress part of the base measures 72 inches long by 32 inches wide. The tent frame measures 34 inches from the top of the bed to the peak of the interior. The textile cover is comprised of polyester panels of various colors sewn together with eight mesh panels, two on the front, back and top, and one at each end, and plastic sheeting panels. There are no flaps to cover the mesh. The cover’s opening can be closed with hook and loop patches. Product advertisements state the inflatable bed tent provides “hours of creative fun” and is for “indoor use or backyard play time.”

In a teleconference, your representatives provided us with information regarding the development of this product. The product was designed to be a play tent, providing amusement by the enclosure. The tent was designed on an inflatable base both for children to bounce around and to provide parents with a product that could be deflated and stowed. We were also informed that the polyester portion of the cover is treated with a water repellant coating.

ISSUE:

Whether the inflatable air bed play tent is classifiable as a toy of heading 9503, HTSUS, or a tent, classifiable by constituent material, in heading 6306, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods:
Tents:

Of synthetic fibers:

6306.22.90 Other

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 term “tent” is not defined in the HTSUS. However, the ENs for
heading 6306, HTSUS, provide, in part, as follows:

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.

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. See, e.g., HQ 962147, dated April 6, 1999 (classifying duck blinds for hunters in heading 6306 because it was “of a class or kind of merchandise” classified in heading 6306); HQ 962408, dated December 17, 1998 (classifying a tent-like attachment for a mattress in heading 9503). We have stated that a tent of heading 6306, HTSUS, need not be fully enclosed and need not protect against extremes in weather. 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).

We found that the tent-like article at issue in HQ 962408 did not provide minimum protection against the elements because the fabric was of flimsy construction and would not be suitable or appropriate for outdoor use, and the openwork windows, which are not designed with any rain flaps, would expose the whole enclosure to wind, sun and rain. See also HQ 954239, dated September 14, 1993 (classifying a similar article outside of heading 6306 because of flimsy construction and mesh “sunroofs”). Similarly, two of the instant article’s eight mesh panels are located in the roof, but the product has no protective flaps. Further, the entrance is secured only with hook and loop patches rather than zippers, as are used in most camping tents to seal the tent closed. We find the instant article does not provide a minimum threshold of protection against the elements. Contrary to NY G88728, this article cannot be classified as a tent of heading 6306, HTSUS.

You claim the inflatable bed tent is a play tent and that it is classifiable as a toy of heading 9503, HTSUS. The term "toy" is not defined in the HTSUS. However, the general EN for Chapter 95, HTSUS, states that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although nothing in heading 9503, HTSUS, or the relevant chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000).

Because heading 9503, HTSUS, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUS. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999). Factors considered when determining whether merchandise falls within a particular class or kind include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 536 F. 2d 373 (CCPA 1976), cert. denied, 429 U.S. 979.

EN 95.03 (22) includes “Play tents for use by children indoors or outdoors.” Thus, play tents are toys. In Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (Ct. Int’l Trade 2000) (Ero), the court considered the classification of “tent-like articles” (playhouses, play tents and vehicle tents) made of a vinyl shell and a supporting framework of interconnected elastic-corded PVC poles and connectors with colorfully imprinted on the exterior licensed copyrighted and trademarked graphics depicting various fictional children's characters and images. It held that all of the merchandise was play tents, classifiable as toys of heading 9503, HTSUS. The Ero court stated, “It is beyond peradventure that young children derive "amusement” . . . from the function of the imports to enclose the child while "playing fort," "playing house," playing "hide-and-seek."” 118 F. Supp. 2d at 1360.

In HQ 954239 and HQ 962408, supra at 3, we classified other tent-like products, which consisted of textile and poles designed to fit over twin-sized beds, as toy of heading 9503, HTSUS. As explained above, neither was classifiable as tents of heading 6306, HTSUS, because both lacked minimum protection against the elements, and, since they were designed with elastic loops to attach to a mattress, were not intended for outdoor use. It is noted that play tents need not be limited to indoor use, especially since the addition of EN 95.03 (22), supra at 4.

You contend that the Ero decision controls the classification of the instant product, and that it is a play tent. We recently reviewed the Ero decision and discussed the scope of the decision with respect to heading 6306, HTSUS, in HQ 964897, dated August 13, 2002. Though we find Ero instructive in ruling out heading 6306, HTSUS, in this case, it does not control the classification of the instant product because the composition and size of the inflatable bed tent is dissimilar from merchandise subject to Ero. The product is uniquely comprised in part of an inflatable base, which is both a “bed” and the frame for the “tent.” Additionally, the “bed” portion of the inflatable component is 72 inches long and 32 inches wide, only slightly smaller than a standard twin-sized mattress, which measures 74 inches long and 39 inches wide. The name of the product includes the word “bed,” indicating the product was intended to be, at least in part, a bed.

Thus, "when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement." Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977) (holding that a baby playfloat was classifiable as a toy since the practical use of the device to support a child in water was incidental and the merchandise was essentially for the child's amusement). The frame presents an impediment to fitting the mattress portion with sheets, a factor that conflicts with the product being principally designed to be a bed. The product is not identical to the tent-like articles classified in HQ 954239 and HQ 962408 because it is not designed to attach to a real bed and is not limited to inside use. However, the cover is designed to fit the inflatable frame and is attached to the “bed” part with elastic loops, as were the play tents in those rulings. And, as stated above, play tents need not be solely designed for use indoors.

The product literature advertises “hours of creative fun,” and “indoor use and outdoor play time” which, according to the Ero court, suggests “cognitive amusement rather than somnolence or napping.” Id at 1363. The literature also includes a parental supervision warning for when children are using it, which also suggests that the product was not designed for sleeping. According to your representative, the product was designed with an inflatable base for children to be able to bounce around, the product was tested by children in such a manner.

The marketing and channels of trade are geared towards children. The physical characteristics make use of the product as a bed impractical. And the product is a brightly colored enclosure not useable as a shelter. Moreover, the product is similar to other articles previously classified as toys. It is evident that this product, though distinct from other play tents classified in heading 9503, HTSUS, because of its inflatable base, is designed and intended to be used in the same manner as a play tent. Therefore, its principal use is amusement. According to the factors set forth in Carborundum, the inflatable bed tent is of a class or kind of merchandise classifiable as a toy in heading 9503, HTSUS. According to Additional U.S. Rule of Interpretation 1(a) and GRI 1, it is classifiable in subheading 9503.90.00, HTSUS.

HOLDING:

The “Inflatable Air Bed Play Tent” is classifiable in subheading 9503.90.00, 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.”

EFFECT ON OTHER RULINGS:

NY G88728, dated April 19, 2001, is hereby REVOKED. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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