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]{.underline} 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:

> \* \* \*

90. 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 open‑sided 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 tent‑like 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
>
> Commercial and Trade Facilitation Division