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HQ 967775




March 14, 2006

CLA-2 RR:CTF:TCM 967775ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 6306.22.9030

Port Director
U.S. Customs and Border Protection
1000 Second Avenue
Suite 2100
Seattle, WA 98104

RE: Protest 3001-05-100070; Gazebos

Dear Port Director:

The following is our decision regarding the Application for Further Review filed by counsel for the importer against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of products referred to as Sun Gazebos and Summer Island Gazebos. The products were entered under subheading 6306.22.9030, HTSUS, which provides for “tarpaulins, awnings and sunblinds; tents; tents: of synthetic fibers: other.” After the goods were liquidated as entered, counsel filed this protest claiming that the goods should be classified in subheading 7308.90.9590, HTSUS, which provides for “other” structures of iron or steel.

FACTS:

The goods under consideration are two varieties of outdoor structures marketed as gazebos. One variety, identified as “Sun Gazebo” is described in advertising as having a: “Powder coated brown steel frame and 10’ x 10’ shade area. Folding side shelves and planter box.” The parts list provided by counsel shows the article consists of a TEXTILENE fabric (coated polyester fabric) canopy, a sunshade, metal frames, shelves and a planter. The second product, identified as a “Summer Island Gazebo” is advertised as having a “Powder coated beige steel frame and a 10’ x 10’ shaded area. Includes corner shelves.” A parts list provided by counsel shows the article consists of a TEXTILENE fabric canopy, a sunshade, metal frames, shelves, and a light set. The products are appropriately heavy for extended outdoor use, weighing approximately 100 pounds and 126 pounds respectively. They are shipped unassembled and are intended to be assembled by the consumer/purchaser. The products are offered for sale on the importer’s internet website along with accessories, among which are mosquito nettings that wrap completely around the outside of the gazebos. CBP did not receive a swatch of the TEXTILENE fabric, but it appears that its designation as a textile fabric is not in dispute.

When the goods were entered, they were classified by the importer in subheading 6306.22.9030, HTSUS, which provides for: “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods: tents: of synthetic fibers: other, other.” The entry was liquidated on December 3, 2004 as entered and counsel filed a timely protest on March 3, 2005, in which it is claimed the goods should be properly classified in subheading 7308.90.9590, HTSUS, which provides for: “Structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel: other: other: other.”

ISSUE:

Whether the subject merchandise is properly classified in heading 6306, HTSUS, which provides for, among other things, tents, or heading 7308, HTSUS, which provides for, among other things, structures of iron or steel?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 order.

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

The HTSUS subheadings 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:

Other

6306.22.9030 Other

7308 Structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel:

7308.90 Other:
Other:
7308.90.95 Other:
Other:
7308.90.9590 Other.

Counsel argues against CBP’s classification of the subject articles as tents by raising several issues which we will identify and then discuss. The first point is that the instant articles are not described by the language of the ENs to heading 6306 which provide, 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.

Counsel states that because the subject gazebos do not have complete walls or sides, they do not fit within the description of “tents” as contemplated by these ENs. The next arguments proceed along the same lines, that the gazebos are not similar to tents, and, even if they were, the heading does not encompass articles that are “similar to tents”. Counsel argues that gazebos are not temporary structures and that they do not meet the judicially recognized definition of “tents.” Finally, counsel argues that these gazebos are structurally different from articles CBP has previously classified as tents.

In response to these arguments, CBP responds that it agrees with counsel that the language of the ENs should be used as guidance, but also that it should be read as it has been written. Although the language of the ENs is not to be read as literally as that of the tariff, where the ENs use the phrase “usually have a single or double roof and sides or walls (single or double)” instead of the phrase “have a single or double roof and sides or walls (single or double),” it is clear that tents are shelters that usually, but not necessarily always, have walls. The primary function of a tent is to provide some overhead shelter. It is not uncommon for tents to have completely removable sides or walls.

In discussing the employment of tents as shelters from the elements, CBP stated, in HQ 962129, dated June 11, 1999,

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). Similar references have been made for the common definition of “tents”, as for example: 1. A collapsible shelter of fabric (as nylon or canvas) stretched and sustained by poles and used for camping outdoors or as a temporary building. Webster's II New Riverside University Dictionary, 1216 (1991). 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 opensided 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 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 wind shelters as tents. See also 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 tentlike structure for protection from wind and sun on the beach or camping, in heading 6306).

CBP went on to state:

Heading 6306, HTSUS, is broad enough to encompass a variety of tents so long as they provide minimal protection from the elements. Although we understand that this merchandise is not sold as “tents”, but as “greenhouses”, Customs has to look beyond this particular importer and view the merchandise as a whole, in terms of the “class or kind of merchandise”. Although this merchandise will primarily be used to protect plants, the tariff does not restrict or qualify the nature of the subject which is to be protected from the elements; all that is required is that the structure itself have the capacity to provide minimum protection from the elements. Based on the foregoing, we conclude that the proper classification for the subject merchandise is under subheading 6306.22.9030, HTSUSA.

The subject gazebos satisfy the requirement that shelter be provided. Interestingly, but not mentioned by counsel, the importer offers through its internet sales website, as an accessory, mosquito nets for both styles of gazebos. In order to be effective, mosquito nets need to completely enclose the space defined by the corners of the gazebo and its roof.

The complexity, type of material used for the framing, and difficulty in erecting the subject gazebos does not alter the fact that these gazebos function as shelters for those who occupy them. Contrary to counsel’s contention, it is not the permanence, or lack thereof, that characterizes a “tent,” but rather its textile-based roofing materials and its ability to provide shelter to its occupants.

The heading counsel proposes as the proper classification for these goods, 7308, HTSUS, provides for structures and parts of structures of iron or steel. The ENs to that heading provide, in relevant part,

This heading covers complete or incomplete metal structures, as well as parts of structures. For the purpose of this heading, these structures are characterised by the fact that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc. Such structures sometimes incorporate products of other headings such as panels of woven wire or expanded metal of heading 73.14. Parts of structures include clamps and other devices specially designed for assembling metal structural elements of round cross-section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing.

Although the subject gazebos may be more substantial than a backpacking tent, they are still TEXTILENE fabric roofed frame structures. They are not metal structures described by the language of the ENs to heading 7308.

In HQ 965070, dated August 21, 2002, CBP classified wooden gazebos with canvas covers in subheading 6306.22.9030, HTSUS. Although the subject gazebos have steel, decorated frames, they are still essentially shelters and should be classified accordingly.

HOLDING:

Accordingly, the subject merchandise was correctly classified as a tent in subheading 6306.22.9030, HTSUSA, which provides for “tarpaulins, awnings and sunblinds; tents; of synthetic fibers: other.” The 2004 applicable general column one rate of duty is 8.8 percent ad valorem and the merchandise falls within textile category 669.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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