CLA-2-63:OT:RR:NC:N3:351
Ms. Karen Yost
C-Air Customs Brokers
9841 Airport Boulevard, Suite 1400
Los Angeles, CA 90045
RE: The tariff classification of a gazebo from Indonesia
Dear Ms. Yost:
In your letter dated May 25, 2011, you requested a tariff classification ruling on behalf of your client, Do It Center/Lumber City Corporation, of Chatsworth, California.
You submitted a picture of the Day Bed Gazebo, Item DBGW501, an acrylic fabric gazebo supported by four aluminum corners that are wrapped in woven wicker strips. No dimensions are given, but it appears to be approximately ten feet square and ten feet tall, with a roof that peaks in the center. Featured in the gazebo is seating in the form of a bench that attaches to all four corners, meaning that the bench/day bed covers the entire inside, with three aluminum lattice-style back rests. The legs and back rests are woven over with strips of wicker. Cushions are also included in the unit. Completely assembled, the unit weighs approximately 950 lbs.
The applicable subheading for the Day Bed Gazebo, Item DBGW501, will be 6306.22.9030, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for Tents: Other. The rate of duty will be 8.8% ad valorem.
In your letter you suggest classification in subheading 9401.69.8011, HTSUS, which provides for seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof. However, the merchandise is a gazebo. The Explanatory Notes (EN) to the HTSUS constitutes the official interpretation of the tariff at the international level. The EN to heading 6306 state, in pertinent part:
(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 presented complete with their tent poles, tent pegs, guy ropes or other accessories.
Webster's II New Riverside University Dictionary (1984) defines the instant terms as follows:
Tent: a portable shelter ... stretched over a supporting framework of poles with ropes and pegs.
Marquee: a large open-sided tent, used chiefly for outdoor entertainment.
In support of your position, you cite two previous Headquarters Ruling Rulings, 965070, dated Aug. 21, 2002, and 967775, dated March 14, 2006. The former covered a gazebo with no permanently built-in furniture and you state it is not relevant to your merchandise. The latter covered a gazebo with built-in shelving, but you state that “the shelving does not constitute the primary function of the product and is not a like or similar product.
We note that in each of the above rulings, HQ classified the gazebo in question as a tent in heading 6306. In both rulings, HQ relied on the same reasoning we have applied above, that is, that the merchandise is a gazebo, a shelter from the elements. The fact that seating is attached does not alter this fact. Consequently, item DBGW501 is not an article of furniture of subheading 9401.
You also cite New York Ruling 831846 (Oct. 3, 1988) which covered merchandise described as “all the prefabricated parts necessary to make a complete gazebo. The descriptive literature lists additional furniture pieces that are included with the gazebo: . . . a ‘picnic table’ which is actually a shelf or counter permanently mounted to the gazebo.” In addition, other furniture and furnishing items that are not attached were included: flower pots, bar stools, a wine rack, and a wine glass holder. This gazebo was classified in heading 9406, HTSUS, as a prefabricated building.
Legal Note 4 to Chapter 94 states that for the purposes of heading 9406 the expression “prefabricated buildings” means:
buildings which are finished in the factory or put up as elements, entered together, to be assembled on site, such as housing or worksite accommodation, offices, schools, shops, sheds, garages or similar buildings.
The ENs to heading 9406 state:
This heading covers prefabricated buildings, also known as “industrialised buildings,” of all materials.
These buildings, which can be designed for a variety of uses, such as housing, worksite accommodation, offices, schools, shops, sheds, garages and greenhouses, are generally presented in the form of:
- complete buildings, fully assembled, ready for use;
- complete buildings, unassembled; - incomplete buildings, whether or not assembled, having the essential character of prefabricated buildings.
The gazebo in question is not akin to a free-standing building as described above. It is distinguishable from the types of structures described in the Legal Note and ENs to heading 9406. The exemplars of heading 9406 are permanent, substantial, and long-lasting structures. They do not include lesser structures such as the instant gazebo, which is a tent. We note that many tents, such as circus tents, may be very difficult to assemble and somewhat permanent. The features inherent to this merchandise do not comply with the requisite characteristics of permanency as intended by the tariff for prefabricated buildings. As such, the subject merchandise cannot be classified as a prefabricated building.
Headquarters has in numerous rulings classified shelters, including gazebos, as tents despite a certain degree of permanence. Your attention is drawn to HQ 964230 (September 28, 2001) in which a large greenhouse was classified in heading 6306 as a tent. That tent had a frame of extruded metal beams or poles. The textile shell had an expected life span of 5 to 7 years, depending on the weather elements. The structure accommodated a sprinkler and lighting system weighing 50-60 pounds. The greenhouse could withstand 40- to 50-mile per hour winds and quarter-sized hail. Each greenhouse contained built-in metal shelves which held 100 pounds per shelf. Assembly of the greenhouse required at least two individuals and tools such as vice grips or pliers, a hammer, and an electric drill. Assembly took 8-15 hours of manual labor. Again, this item was classified as a tent in heading 6306, not in heading 9406.
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/.
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