Walter Price, Chief Executive Officer


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HQ 961995
October 25, 1999
CLA-2 RR:CR:TE 961995 SS
CATEGORY: Classification
TARIFF NOS.: 6306.22.1000
Walter Price, Chief Executive Officer

Outdoor Innovations, Ltd.

150 North Sunway Drive

Gilbert, AZ 85233
Re: Request for Reconsideration of New York Ruling NY C88764; Self-Erecting Pop-Up Tents; Backpacking Tents; 6306.22.1000, HTSUSA; Other Tents; 6306.22.9030, HTSUSA
Dear Mr. Price:
This is in response to your letter dated June 26, 1998, requesting reconsideration of New York Ruling Letter (NY) C88764, dated June 17, 1998, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of Quickdraw self-erecting pop-up tents styles identified as “Appalachian”, “Vagabond II”, “Glacier II”, “Glacier” and “All American”. The tents are imported from China. Physical samples of styles identified as “All American” and “Glacier II” were provided with the request for reconsideration. A Quickdraw catalog, detailed product literature (including specifications, setup and dismantling) on each of the identified styles, and an Instruction Manual (including procedures for attachment to the backpack) were also provided with the request for reconsideration. A supplemental submission was made on August 3, 1998, and included a videotape labeled “Hike at the Mongollon Rim-Horton Trail Backpacking Trip” and a Highline Trails Guide for the Toronto National Forest. In order to classify the tents, it was necessary to send the tents to the Office of Laboratory and Scientific Services (hereinafter referred to as “Customs laboratory”) for measurement. The importer submitted four samples to the laboratory: “Explorer (formerly identified as “All American”)”, “Glacier”, “Glacier II” and “Safari (formerly identified as “Vagabond II”)”. It is our understanding that the “Appalachian” has been discontinued and will not be imported. Accordingly, this ruling only addresses the four (4) tents examined by the Customs laboratory.
This letter is to inform you that after review of NY C88764, it has been determined that the classification of the tents in subheading 6306.22.9030, HTSUSA, is incorrect. As such, NY C88764 is revoked pursuant to the analysis which follows below.


Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY C88764 was published on September 8, 1999, in the Customs Bulletin, Volume 33 , Number 35/36.
FACTS:
The four (4) subject tents are pop-up tents constructed of nylon woven fabric. The tents consist of a spring metal frame within the fabric that can be coiled into a flat disc shape. The folded tents are held in place by an elasticized strap. The folded tents are contained and transported in a zippered disc-shaped carrying case made of the same material. The case has two textile web handles and a detachable web fabric strap that can be used either as a shoulder strap or to attach the tent to a backpack. The case also has four (4) plastic triangle clips for attaching the strap or attaching the tent to a backpack. The carry packages of the four (4) tents vary in diameter and in thickness.1
The physical characteristics and construction of the four styles of tents were represented by Outdoor Innovations, Ltd. (“Importer”) as follows:
1. Vagabond II

sleeps: 3-4 persons

height: 52 inches

floor area: 54 square feet

weight: 9 pounds (under 12 pounds fully packed)

carry package volume: 1,018 cubic inches

carry package diameter: 36 inches
2. Glacier II

sleeps: 3 persons

height: 52 inches

floor area: 49 square feet

weight: 7 pounds (under 12 pounds fully packed)

carry package volume: 804 cubic inches

carry package diameter: 32 inches
3. Glacier

sleeps: 2 persons

height: 45 inches

floor area: 40 square feet

weight: 7 pounds (under 8.5 pounds fully packed)

carry package volume: 707 cubic inches

carry package diameter: 30 inches

4. All American

sleeps: 1-2 persons

height: 39 inches

floor area: 26 square feet

weight: 5 pounds (under 8.5 pounds fully packed)

carry package volume: 573 cubic inches

carry package diameter: 27 inches
The Importer also submitted that when folded, the tents formed a disk not exceeding 2 inches in depth. However, it was obvious that the Importer used 1 inch as the depth in calculating the cubic inches measurement. Furthermore, upon examination of the “Glacier II” carry package, the disc shape appeared to be of uneven thickness and the thickness even exceeded 2 inches in certain areas. Since the cubic inches measurement would be affected by the thickness and the cubic inches measurement plays a major role in the classification of backpacking tents with carry packages that are not cylindrical in shape, the tents were forwarded to the Customs laboratory for measurement.
The Customs laboratory measurements indicated that the tents had the following measurements:
1. “Safari (formerly identified as Vagabond II)”

carry package thickness: 1.5 inches

carry package diameter: 37 inches

carry package volume: 1,613 cubic inches
2. “Glacier II”

carry package thickness: 2.5 inches

carry package diameter: 34 inches

carry package volume: 2,270 cubic inches
3. “Glacier”

carry package thickness: 1.5 inches

carry package diameter: 31 inches

carry package volume: 1,132 cubic inches
4. “Explorer (formerly identified as All American)”

carry package thickness: 1.5 inches

carry package diameter: 26 inches

carry package volume: 796 cubic inches
ISSUE: Whether the subject tents are properly classifiable under 6306.22.1000, HTSUSA, which provides for backpacking tents, or under 6306.22.9030, HTSUSA, which provides for other tents?
LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) 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 GRI may then be applied. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, and any related subheading notes and mutatis mandis, to the GRIs. This matter is governed primarily by GRI 6, in that the choice in classification is between two subheadings. Subheading 6306.22.10, HTSUSA, provides for backpacking tents while subheading 6306.22.90, HTSUSA, provides for other tents. Accordingly, classification in this case depends on whether or not the tents are considered backpacking tents.
Backpacking tents have not been defined at the international level. The distinction between backpacking tents and other tents is an issue only at the United States eight digit subheading level. Customs has repeatedly stated that determinations under the Tariff Schedule of the United States (TSUS), while not binding, are persuasive in this matter. See Headquarters Ruling Letter (HRL) 086091, dated January 11, 1990; HRL 086076, dated February 15, 1990; HRL 951263, dated June 15, 1992; HRL 954667, November 15, 1993; HRL 955215, dated February 7, 1994. In The Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, C.D. 4648 (1976), a case decided under the TSUS, the Court held that backpacking was a sport and that backpacking tents would be classified under the provision for sporting equipment which carried a lower duty rate. Thus, it became necessary to distinguish between tents used for backpacking and tents used for other purposes. Although tents are excluded from the chapter covering sports equipment under the HTSUSA, the distinction between backpacking tents and other tents was carried over at the subheading level of heading 6306, HTSUSA. The Court in Newman Importing merely cited the following factors in determining whether a tent is suitable for use as a backpacking tent: design, lightness, compactness and ease of assembly. Accordingly, Customs issued guidelines for distinguishing backpacking tents from other tents.
The first guidelines which established parameters concerning the material, capacity, dimensions and weight of backpacking tents were contained in C.S.D. 79-108, dated August 21, 1978. It was specifically decided not to exclude dome tents or pop-up tents from being backpacking tents. C.S.D. 79-108 at 1150. Later, due to technological advances involving tent material and construction methods that permitted tent manufacturers to produce lightweight camping tents for general recreational use, the guidelines became obsolete. Accordingly, Customs revised the previously issued guidelines by T.D. 86-163, dated August 5, 1986. Customs noted that the only sensible method of determining a tent’s eligibility for classification as a backpacking tent was by quantifying its size and weight. T.D. 86-163 at 472. As a result, to qualify as a backpacking tent, the tent must meet the following criteria:
(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) Weigh 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 of more than 65 square feet and a standing height of more than 60 inches is a tent designed for general recreational use.
These guidelines have been applied in several Headquarters Ruling Letters. See HRL 086091, dated January 11, 1990; HRL 086076, dated February 15, 1990; HRL 951263, dated June 15, 1992; HRL 954667, November 15, 1993; HRL 955215, dated February 7, 1994.
In applying the guidelines to the subject tents, Customs initially classified the tents under 6306.22.9030, HTSUSA. See New York Ruling Letter (NY) C88764, dated June 17, 1998. The decision was based on the conclusion that the tents were not specially designed for the sport of backpacking. Although Customs noted that the cases were fitted with straps that appeared to be a convenient way to carry the tent, the main focus was on the diameters of the carry packages. Customs stated that the diameters far exceeded the requirements for carry size diameter. Although we find this application of the guidelines relating to carry size to be incorrect, we note that it did follow two previous Headquarters Ruling Letters.
Headquarters Ruling Letter (HRL) 954667 (cited above), involved a similar disc-shaped tent for two persons. The disc measured 32 inches in diameter and 2 inches in thickness. Customs stated that its size did not indicate its purpose was for backpacking and that a 32 inch disc could not be carried conveniently on the backs of most persons. In finding that the size of the carry package far exceeded the 9 inch diameter requirement, it is obvious that the requirements for traditional cylindrical-shaped carry packages were applied. This was in error. Additionally, in HRL 955215, Customs dealt with a similar two man disc-shaped tent that was 33 inches in diameter. Citing the previous case, Customs stated that the dimensions called into question the intended purpose. Customs found that the tent did not meet the carry size guideline requirements. Again, the application of the guideline diameter requirements for traditional cylindrical-shaped carry packages was in error. The tents did not have carry packages that were

the traditional cylindrical shape and, thus, the guideline requiring a diameter of less than 9 or 10 inches was inapplicable.2
The revised guidelines explicitly recognized that not all tents are carried in a cylindrical shape. TD 86-163 at 472. In revising the guidelines to allow for carry size to be measured in cubic inches, Customs specifically acknowledged that nontraditional tent packaging were being marketed. We find that applying the guidelines for traditional carry size to disc-shaped pop-up tents is improper. Accordingly, the cubic inches of a disc-shaped carry package must be measured in order to apply the guidelines. As stated above, it was determined by the Customs laboratory that the tents met the guidelines for cubic inches measurement.
Finding that the cubic inches measurements of the subject tents meet the guidelines, however, does not end our inquiry. The tents must meet the litany of other requirements. According to the Importer and Customs laboratory, the tents also meet the weight and floor area requirements. Additionally, the nylon taffeta meets the man-made material requirement. The remaining question is whether or not the tents were specially designed for the sport of backpacking. The Importer contends that the tents are specifically designed for the sport of backpacking based on the physical characteristics of the tents, the manner in which the tents are designed and how the tents will be marketed and sold in the United States.
The tents are lightweight, weather resistant, stable, durable, easy to assemble and highly portable. 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. The tensile steel frame and shock rods are patented inventions which allow for the use of lighter materials in the tent construction while providing a high degree of stability and durability. The tents are self-erecting and expand to full position in three seconds. The unique rapid set-up design allows the tent to be opened by simply tossing it into the air. The tents are advertised as “the answer to all of your camping-shelter needs” and as making “setting up your tent your most effortless camping task.” When a tent is fully packed, the disk-shaped carry package is somewhat flexible. In fact, the video tape submitted by the Importer shows the disk-shaped package almost molding around a large backpack when bungee cords are attached. Even without the bungee cords, each carrying case is specially fitted with triangle brackets and a strap by which to attach the tent to the backpack. Furthermore, we observed in the video tape that the


carry package did not extend outside the frame of the body nor bump against various obstructions as a backpacker navigated over rough terrain.
The Importer designs, manufacturers, imports and sells outdoor sporting goods, including tents, both for backpacking and general purpose use. The Importer asserts that its design teams are experts in backpacking related goods and that extensive research and development is undertaken to design its tents specifically for backpacking. The Importer alleges that this design is superior to traditional backpacking tents which hang from the bottom of the backpack causing uneven weight distribution and constant banging on the wearer’s back. Additionally, sleeves within the carrying case for shock rods and stakes were specially designed to further aid in weight distribution. This unique carrying method allows for more even weight distribution over the backpack while allowing additional carrying space on the bottom of the pack for a sleeping bag.
The tents are marketed and sold to buyers involved in the outdoor sporting goods industry. They are sold in stores which specialize in selling outdoor gear, including hiking and backpacking products. Additionally the tents are sold in outdoor departments of larger retailers. The Importer states that each of these retailers purchases the tents as backpacking tents and displays and sells them as the same. The Importer has also submitted nine Affidavits from retailers stating that the tents are known to be used for backpacking. All the product literature prominently indicates that the tents are specifically designed for backpacking. They state “self-erects in just 3 seconds”, “designed for backpacking”, “attaches quickly to pack” and “distributes weight evenly on pack”. The “Back-pack Instructions” portion of the Instruction Manual includes drawings on how to secure the tent to a backpack. Lastly, the submitted video tape shows several people with the various tents attached to backpacks hiking through rigorous mountain terrain and a trail ranked “Most Difficult” in the Highline Trails Guide.
In examining the physical characteristics, design and marketing, we find that the tents are specifically designed for the sport of backpacking. Some concern has been raised regarding the large diameter of the disk-shaped carry package. Although the carry size of a backpacking tent must not be so large as to interfere with the rigors of the sport of backpacking, we emphasize that the carry sizes meet the guideline requirements. Accordingly, we find that the size and shape of the carry packages of the instant tents do not preclude them from being considered specifically designed for the sport of backpacking.
Applying the guidelines to the tents at issue, we find that the tents meet all the requirements for classification as backpacking tents. Accordingly, the tents may be classified as backpacking tents under 6306.22.1000, HTSUSA.
HOLDING:
The tents are properly classifiable in subheading 6306.22.1000, HTSUSA, which provides for tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: tents: of synthetic fibers: backpacking tents. The applicable rate of duty is 2.3 percent.


NY 88764 dated June 17, 1998, 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,
John Durant, Director

Commercial Rulings Division


1 The term “carry package” refers to the package carried by the backpacker, i.e., the carrying case packed with the tent and all accessories needed to pitch the tent.

2 It should be noted that the two previous cases can be distinguished in that there was no evidence that the tents were specially designed for backpacking while the evidence submitted for the subject tents clearly establish that the tents are designed, marketed and sold as backpacking tents. Furthermore, we note that the two previous tents were larger in diameter and thickness than the two subject tents that are designed for 1 or two persons. Accordingly, although the application of the guidelines relating to carry size was incorrect in the previous cases, the ultimate holdings appear to be proper. Thus, modification and/or revocation proceedings with respect to these two rulings pursuant to 19 U.S.C. §1625 are unnecessary.

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