                           Slip Op. 12 - 41

           UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - x

TARGET STORES, A DIVISION OF TARGET      :
CORPORATION,
                                         :
                           Plaintiff,
                                         :
                      v.                     Consolidated
                                         :   Court No. 06-00444
THE UNITED STATES,
                                         :
                           Defendant.
                                      :
- - - - - - - - - - - - - - - - - - - x

                           Opinion & Order

[Upon trial as to classification of gazebo
 assemblies, judgment for the plaintiff.]

                                             Decided:   March 22, 2012

     Rode & Qualey (Patrick D. Gill and Michael S. O’Rourke); Cerny
Associates, P.C. (Michael V. Cerny and Marilyn-Joy Cerny), of
counsel, for the plaintiff.

     Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge; International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Justin R. Miller, Edward F. Kenny and Jason M. Kenner); and Office
of the Assistant Chief Counsel, International Trade Litigation,
U.S. Customs and Border Protection (Paula S. Smith), of counsel,
for the defendant.


          AQUILINO,    Senior   Judge:   This   test    case   contests

classification by U.S. Customs and Border Protection (“CBP”) of

merchandise imported from China for the plaintiff sub nom. Sun

Gazebo, Summer Island Gazebo, Sean Conway Grand Casual Gazebo,
Consolidated                                                                       Page 2
Court No. 06-00444


Adagio Gazebo and Veranda Hexagonal Gazebo as “tents” within the

meaning of heading 6306 of the Harmonized Tariff Schedule of the

United    States       (“HTSUS”),     in    particular        subheading       6306.22.90

thereof (“Tents: Of synthetic fibers: . . . Other . . . 8.8%”).

The importer protested that classification, claiming such goods

should have entered duty free under HTSUS subheading 7308.90.9590

(“Structures       .     .   .   of    iron          or   steel    .   .   .     Other”).


            Upon CBP denial of the protest(s), confirmed per HQ

967775 (March 14, 2006) via importer application for further

review, this case duly commenced pursuant to 19 U.S.C. §1514(a) and

28 U.S.C. §§ 1581(a) and 2631(a).


                                                I

            Following        joinder       of       issue,   the   parties      commenced

pretrial preparations, during which time counsel for the defendant

came to offer to stipulate judgment in plaintiff’s favor as

follows:



     --     That the Sun, Summer Island, Sean Conway Grand Casual,

and Veranda Hexagonal gezebos encompassed by the entries listed on

a schedule attached to the proposed stipulation be reliquidated

duty free pursuant to HTSUS subheading 7308.90.95.
Consolidated                                                  Page 3
Court No. 06-00444


     --   That the Adagio gazebos encompassed by the entries listed

on that schedule be reliquidated at the rate of 3.3% ad valorem

prescribed by HTSUS 4421.90.97.1


Counsel’s letter of transmission of this offer to their adversaries

also stated:

          Even though we are stipulating the classification of
     the merchandise in Consol. Court No. 06-00444, we also
     write, as a matter of courtesy, to inform you that we
     will not agree to the stipulation of the cases that are
     suspended under Consol. Court No. 06-00444.2


          This condition engendered the following reaction:

     Plaintiff does not agree with your proposed stipulation
     nor with the disposition of this case on the basis of
     that stipulation. Frankly, we do not understand how the
     government could request the Court to enter a judgment
     sustaining the claimed classification and at the same
     time state that it will not follow the decision and

     1
       By the time of this proposal, CIT No. 06-00444 had been
ordered consolidated with subsequent case number 07-00230 that
covered additional entries, including Adagios, which have wooden,
as opposed to metal, frames, thereby making them arguably
classifiable under this subheading (“Other articles of wood: . . .
Other”).
     2
       USCIT Rule 84(c) provides that an action may be suspended
under a test case, which this one is, if both involve the same
significant question of law or fact, which, according to
subparagraph (e) of this rule, must be so alleged in any motion for
suspension.
       In accordance with this rule, the court has granted a number
of motions made by the plaintiff for suspension under this test
case.
Consolidated                                                         Page 4
Court No. 06-00444


     judgment of the Court nor agree to stipulate the same
     claims in any other pending actions involving merchandise
     which is identical or the same in all material respects.
     We also note that the proposed stipulation fails to
     concede or set forth the facts which establish that the
     imported gazebos are not tents. Plaintiff fully intends
     to proceed to trial.


Claiming to rely on USCIT Rules 54 and 58, the defendant interposed

a formal Motion for Entry of Judgment in Plaintiff’s Favor. On its

part, plaintiff’s continuing demand for trial led to adoption of a

pretrial order and a motion in limine by the defendant in response

thereto.

           That threshold motion was directed at exhibit 1 on

plaintiff’s     list,   referenced   as    “Transcript    of   Record   and

Certification in Rona Corporation Inc. v. President of Canada

Border Services Agency, Appeal No. AP-2006-033”, and at exhibit 43,

a “Copy of decision of Canadian International Trade Tribunal in

Rona Corporation Inc. v. President of Canada Border Services

Agency, Appeal No. AP-2006-033”.          Defendant’s motion also sought

preclusion from the trial of two individuals on plaintiff’s list of

proposed witnesses, namely, Jeffrey D. Konzet, CBP Office of

International    Trade,   and   Mitchel    Bayer,   CBP   National   Import

Specialist.   The motion with regard to those two was denied during

the trial, and each in fact appeared and testified.
Consolidated                                                        Page 5
Court No. 06-00444


            As for the proffered exhibits from Canada, the court

reserved decision, pending receipt and consideration of excellent

memoranda of law submitted on both sides.             While each exhibit

seemingly    is   relevant,   and   the    decision    of   the   Canadian

International Trade Tribunal presumably is entitled to this court’s

respect, in deciding this case at bar, the undersigned has not

found it necessary to look beyond U.S. borders for enlightenment,

nor has he done so.   Hence, to the extent that the CITT decision is

genuinely a matter of foreign law within the contemplation of USCIT

Rule 44.1, as opposed simply to the same analysis of the same

provisions of the Harmonized Tariff Schedule required herein, this

court has not and will not exercise the broad discretion, which

that rule of practice grants it.          Ergo, for the record of this

matter, defendant’s motion in limine should be, and it hereby is,

granted as to plaintiff’s exhibits 1 and 43.


                                    II

            A reason for this disposition is that plaintiff’s second

numbered exhibit, 2, dominated the trial.       From the first call of

the case onward, everyone involved was in close proximity to a Sun

Gazebo that had been erected in the well of the courtroom and

appeared essentially as follows:
Consolidated                                                    Page 6
Court No. 06-00444




See Plaintiff’s Exhibit 8.    See also Plaintiff’s Exhibit 3, Exhibit

4, Exhibit 5, Exhibit 6, Exhibit 7.     The foregoing image has been

extracted from exhibit 8, which is the assembly instruction for the

Sun Gazebo.   It has a list of some 147 parts, including A      Center

fitting (1), B   Lintel (4), C   Screen (4), D   Pole (87.6 inch) (4),

E   Pole (65.2 inch) (4), F   Bolt (0.24 x 0.98 inch) (16), G   Washer

(0.24 inch) (48), H    Nut (0.24 inch) (16), I   Plastic nut cap (16),

J   Bolt (0.24 x 0.78 inch) (16), K    Canopy (1), L    Sunshade (1),

M   Stake (8), and N   Bracket (pre-assembled) (8).    The instruction

is necessary since all of these parts, save the eight pre-assembled
Consolidated                                                      Page 7
Court No. 06-00444


brackets, are packed individually in a cardboard box for retail à

la plaintiff’s exhibit 3.     In terms of substance and number, most

are pieces of iron or steel.


            The demonstrativeness of this opening evidence was enough

to confirm the perspicacity of defendant’s attorneys pretrial. They

were left at trial to do the best they could defending CBP’s

classification under the HTSUS that, however inclusive it has

become, contains the word “tent” but not the term “gazebo”, which,

according    to   the   paragon     American   lexicon,   Webster’s   New

International Dictionary of the English Language Unabridged, p. 1041

(2d ed. 1945), probably “humorously formed” from the verb to gaze.

Doing exactly that during plaintiff’s presentation of admissible

evidence caused this court to conclude then and affirm now that its

goods, as entered and as expected to be constructed after purchase,

do not constitute tents.          Plaintiff’s expert witness testified

extensively as to his knowledge, use, and/or marketing of tents of

all kinds and stated, among other things, in his written report that

     there are no similarities between any of the tents that
     I have used, or observed that look or function as a
     gazebo.


Plaintiff’s Exhibit 80, p. 4.        See generally transcript of trial

(“Tr.”), pp. 329-446. Indeed, defendant’s counsel conceded as much.
Consolidated                                                Page 8
Court No. 06-00444


See id. at 348-49, 358.   That report sought graphically to compare

characteristics of tents with those of gazebos:




Plaintiff’s Exhibit 80, p. 4.   On its face, this depiction omits3

reference to regular elements of tents, to wit, guy wires or ropes

and anchor pegs or stakes that enable them to sustain their


     3
       The court finds the subGAZEBO statement “Steel and wood are
structural components of tent” to be off the mark. While those
substances sometimes comprise tent poles, unlike gazebos, they are
not the essence of tents, their shrouds are. Cf. Tr., pp. 402-03.
Consolidated                                                            Page 9
Court No. 06-00444


pitchments, nor does it quantify the many more elements of gazebos

vis-à-vis tents, e.g., Summer Island Gazebo (419 parts), Adagio

Gazebo (91 parts), Veranda Hexagonal Gazebo (133 parts), and Sean

Conway Grand Casual Gazebo (356 parts).           See Plaintiff’s      Exhibit

13, Exhibit 18, Exhibit 21, Exhibit 26.           The record, as developed

herein, does not reflect any such numbers for tents.


              The parties refer to Ero Industries, Inc. v. United

States, 24 CIT 1175, 118 F.Supp.2d 1356 (2000), which involved the

correct classification of “playhouses”, “play or slumber tents”, and

“vehicle tents”.      In determining that those goods should have been

classified as toys under HTSUS 9503.90.00, the government’s position

upon cross-motion for summary judgment caused that court to consider

this Explanatory Note to heading 6306:

       Tents are shelters made of lightweight to fairly heavy
       fabrics of man-made fibers, 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.


That court also referred to lexicographic definitions of the term

tent   viz.    a   collapsible   shelter   of   canvas   or   other   material
Consolidated                                                   Page 10
Court No. 06-00444


stretched and sustained by poles, usually used for camping outdoors

(as by soldiers or vacationers); shelters supported by poles and

fastened by cord to pegs driven into the ground; “shelter” as used

in most definitions of “tent” refers to temporary structures used

for protection against the elements, 24 CIT at 1185, 118 F.Supp.2d

at 1364.   That court proceeded to find that its imports,

     while affording some enclosure, are not “shelters” within
     most definitions of the term “tent” since the imports
     were neither designed nor constructed for protection
     against the elements.

Id., n. 4 omitted.

             The record at bar supports the same finding.      To the

extent those weather “elements” do not include sunshine but are

everything else nature has to offer, e.g., hail, rain, sleet or

snow, often driven by wind, plaintiff’s gazebos offer little or no

protection     therefrom.    Rather,   their   intended   function   is

demarcation of outdoor home areas, essentially for use during

moments of acceptable ambiant air temperatures and meteorological

tranquility. Compare Plaintiff’s Exhibits 4, 9, 15, 20, 22, 23, 48,

49, 54, 55, 56 and 57 with Tr., pp. 26, 71, 385.


                                 III

             After the plaintiff had rested at trial, the defendant

took the position that the court has all the facts necessary to
Consolidated                                                   Page 11
Court No. 06-00444


decide this case.    Tr., p. 511.     And indeed it does; the record

evidence   establishes   without    contradiction   that   plaintiff’s

merchandise herein is marketed, sold, assembled, displayed, and

enjoyed as gazebos, not as tents. The only thing they have arguably

similar to the latter are their canopies, but those alone do not

satisfy HTSUS General Note 1 to Chapter 63 that “applies only to

made up articles, of any textile fabric.” Rather, plaintiff’s goods

become essentially structures of metal or wood bolted together

external to individual homes and expected to remain so configured

for extended periods of time.      And the Customs Service apparently

once understood such structures to be gazebos, not tents.         See,

e.g., HQ 082489 (Oct. 31, 1988).    That it no longer continues to do

so requires that judgment now enter on behalf of the plaintiff.

           So ordered.

Decided:   New York, New York
           March 22, 2012



                                      /s/   Thomas J. Aquilino, Jr.
                                                 Senior Judge
