CLA-2 RR:CR:TE 964230 ss
James C. McKelvey
NorthPole USA
3333 Yale Way
Freemont, CA 94538
RE: Classification of a “Greenhouse”; Tents; Heading 6306, HTSUSA; Not Prefabricated Buildings; 9406, HTSUSA
Dear Mr. McKelvey:
This is in response to your letter, dated May 31, 2000, requesting the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain greenhouses made in China.
FACTS:
The greenhouses will be imported in four sizes, measuring at the base 6 by 10 feet, 9 by 10 feet, 10 by 12 feet and 10 by 15 feet. The greenhouses are specifically designed to work in conjunction with the sun to promote growth and vegetation of agricultural products. They function in conjunction with the sun, rain and air (for example, temperature and humidity) to perform their primary function of providing an optimal environment for promoting plant growth throughout the year, especially in cooler climate zones.
The frame accounts for approximately 50 percent of the total cost and is composed of extruded metal beams or poles. The structure is designed to be freestanding without external ropes but is fastened to the ground by fabric loops and four 15 inch stakes. The exterior of the greenhouse is composed of fabric of polyethylene strips. The textile shell is attached to the frame by steel hardware; namely screws, bolts and pins. You state that the textile shell has an expected life span of 5 to 7 years, depending on the weather elements. The structure can accommodate a sprinkler and lighting system weighing 50-60 pounds. The greenhouse can withstand 40 to 50 mile per hour winds and quarter- sized hail. Each greenhouse contains metal shelves which can hold 100 pounds per shelf. Assembly of the greenhouse requires at least two individuals and tools such as vice grips or pliers, a hammer, and an electric drill. You assert that assembly will take 8-15 hours of manual labor.
ISSUE:
Whether the subject merchandise is properly classified in heading 9406, HTSUSA, which provides for prefabricated buildings, or heading 6306, HTSUSA, which provides for, among other things, tents?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings.
This matter is governed primarily by GRI 1, in that the choice of classification is between two headings. The headings under consideration are: heading 9406, HTSUSA, which provides for prefabricated buildings, and heading 6306, HTSUSA, which provides for, among other things, tents. Classification in this case depends on whether or not the merchandise at issue is considered a prefabricated building or a tent.
I. Heading 9406, HTSUSA
Heading 9406, HTSUSA, provides as follows:
9406.00 Prefabricated buildings:
9406.00.40 Of wood
Other
Of metal:
Greenhouses:
Commercial
Other
Other
Other:
Animal sheds of plastic
90 Other
The heading provides for “prefabricated buildings.” The term “greenhouse” is not mentioned until the ten-digit statistical level underneath the provision for prefabricated buildings of metal. Thus, some prefabricated buildings made of metal are greenhouses. However, the heading and subheadings cannot be read to mean that all greenhouses are prefabricated buildings.
Note 4 to Chapter 94 states that for the purposes of heading 9406, HTSUSA, 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 Explanatory Notes to the Harmonized Commodity Description and Coding System (ENs) to heading 9406, HTSUSA, 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.
Although the ENs do list “greenhouses” as a use for which a prefabricated building can be designed, the article must meet the requirements for a prefabricated building before classification under heading 9406, HTSUSA, is possible.
First, the article must be a “building.” The term itself connotes something more substantial and permanent than the subject merchandise. Webster’s Ninth New Collegiate Dictionary defines “building” as “a usually roofed and walled structure built for permanent use (as for a dwelling).” The subject merchandise does not fit within the traditional notion of a “building.”
The ENs shed light upon the type of structure intended to be covered by heading 9406, HTSUSA. The ENs state that in the case of buildings presented unassembled, the necessary elements may be presented partially assembled or cut to size. Examples of such elements include walls, trusses, beams, joists, sills and insulation. Customs is not influenced by the argument that the “walls” are made of textile and the “trusses” are made of metal beams. The ENs address substantial articles which are sometimes presented partially assembled. The subject merchandise does not have any elements similar to the listed elements of prefabricated buildings.
The ENs also state that only built-in equipment normally supplied is to be classified with the buildings. Examples of equipment normally supplied with prefabricated buildings include electrical fittings (wiring, sockets, switches, circuit-breakers, bells, etc.), heating and air conditioning equipment (boilers, radiators, air conditioners, etc.), sanitary equipment (baths, showers, water heaters, etc.), kitchen equipment (sinks, hoods, cookers, etc.) and items of furniture which are built in or designed to be built in (cupboards, etc.). Although the subject greenhouses can accommodate a 50-60 pound sprinkler system or fan, it is not similar to the exemplars in the ENs which are illustrative of the types of substantial structures contemplated by the heading.
Lastly, the ENs state that materials for the assembly or finishing of the prefabricated building are classified with the building if presented in appropriate quantities. Examples of materials typically used in assembly or finishing include nails, glue, plaster, mortar, electric wire and cables, tubes and pipes, paints, wallpaper and carpeting. The subject merchandise is not assembled or finished with any such materials.
Thus, it appears that the subject merchandise is distinguishable from the types of structures described in the ENs to heading 9406, HTSUSA. The exemplars of heading 9406, HTSUSA, are permanent, substantial, and long lasting structures. They do not include lesser structures such as the instant metal pole framework with a textile cover. You argue that the greenhouses are difficult to assemble but we note that many tents, such as circus tents, may also be very difficult to assemble. And, relatively speaking, the assembly described is easier, quicker and requires less tools than assembling a prefabricated building. The features inherent to this merchandise neither comply with the requisite characteristics of permanency as intended by the tariff for prefabricated buildings, nor fit the ambit of the concept in the common or commercial meaning. As such, the subject merchandise cannot be classified as a prefabricated building.
In Headquarters Ruling Letter (HQ) 960150, dated June 26, 1997, Customs declined to classify a BioTech Shelter as a prefabricated building. The BioTech shelter consisted of a framework of tubular galvanized steel, a 30 ft. by 70 ft. rectangular tarpaulin, and lengths of rope. The tarpaulin was made of knit textile fabric, polyethylene coated on both sides, to which a thin layer of aluminum and an ultraviolet light protective coating have been added. The tarpaulin, with D-ring grommets stitched to the edges every 18 inches, formed a semicircular roof, open at both ends, that curved down and attached to walls of either wood or concrete. These, together with the lengths of rope, anchored the shelter to the ground. Wood and/or concrete foundations were at the option of the user and simpler assemblies utilized the ropes attached to metal stanchions in the ground. The BioTech Shelter was commonly used to provide protection from the elements for livestock, crops and equipment. Customs held that the BioTech shelter was not the type of construction described in the ENs to heading 9406, HTSUSA, and was not encompassed by the term “prefabricated building.” Customs additionally found that there was no indication that the BioTech Shelter was bought and sold or commonly regarded in the industry as a building. The subject merchandise is similar to the BioTech shelter and is therefore also not within the scope of heading 9406, HTSUSA. See also NY 894119, dated February 9, 1994 (structure consisting of metal frame and cover composed of woven polyester fabric coated on both sides with a visible layer of polyvinyl chloride classified as an other article of plastic under heading 3926, HTSUSA).
In HQ 958001, dated February 6, 1996, and HQ 958745, dated February 6, 1996, Customs classified an “Aluminum Hall” as a prefabricated building under heading 9406, HTSUSA. The “Aluminum Hall” was a freespan, modular fabric tension structure that was designed to withstand high winds, shed snow, and provide durable, safe, and economical temporary shelter where speed of installation or relocation is essential. The structural frame, which comprised 80 percent of the cost, was composed of extruded aluminum box beams with an integrated channel system. The roofing membrane, which was inserted in the integrated channel system and tensioned between each frame, was composed of polyester fabric coated with polyvinyl chloride. The sidewalls of the “Aluminum Hall” were constructed of rigid fiberglass-reinforced plastic resin that was molded to shape. The “Aluminum Hall” was freestanding without internal columns or ropes. Additionally, it was capable of supporting heavy appliances such as lighting and sprinklers. We note that classification under heading 6306, HTSUSA, was considered because the Aluminum Hall used a type of fabric in its roof or walls. However, because Legal Note 1(h) to Section XI excludes articles of plastic coated fabrics of Chapter 39 from the section, classification of the Aluminum Hall under heading 6306, HTSUSA, was prohibited.
Although the subject greenhouses share some features with the “Aluminum Hall,” they are distinguishable. Only the roofing membrane of the “Aluminum Hall” was made of fabric; the walls were made of rigid fiberglass-reinforced plastic that is molded to shape. The “Aluminum Hall” was completely freestanding; it did not need loops and stakes which attach the subject greenhouses to the ground. The “Aluminum Hall” could withstand winds twice as strong as the greenhouse. The greenhouses are secured to the frame at a few key points throughout the structure; it is not an integrated channel system where a membrane is actually inserted and tensioned between many frames. A review of the underlying file concerning the “Aluminum Hall” also revealed that the structures were engineered and designed to meet local and national building codes while there is no evidence in the present case that the greenhouse meet any type of building codes.
The subject greenhouses are also distinguishable from greenhouses previously classified under heading 9406, HTSUSA. In NY 815616, dated November 9, 1995, Customs classified prefabricated buildings used as “plant cultivators” or greenhouses under heading 9406, HTSUSA. Similar to the subject merchandise, the “plant cultivators” provided a controlled, optimal environment for growing plants. However, in contrast to the subject merchandise, the building consisted of a steel frame covered by fiberglass panels with front and rear doors. Furthermore, the inside of the unit featured tiered arrays of “breeding plates”, an automatic spraying system, rows of flourescent lamps, ventilating fans, an air conditioning system and an electronic control box. In NY 818125, dated February 2, 1996, Customs classified an unassembled three-acre greenhouse under heading 9406, HTSUSA. The greenhouse consisted of steel building supports and glass panes held in place by an aluminum framework. The greenhouse was much more elaborate than the subject merchandise and included a greenhouse subsystem, screening and shading system, drip irrigation system, heating and carbon dioxide system, recirculation fans, rainwater collection system, roof sprinkler system and electrical system. In NY C85808, dated April 22, 1998, Customs classified “personal” greenhouses under heading 9406, HTSUSA. Unlike the subject merchandise, the greenhouses had walls and roofs made of polycarbonate or glass panels fitted within an aluminum framework. They also featured aluminum foundations, sliding doors, automatic heat-activated ridge vents, gutters and downspouts. In NY C85807, Customs classified “Hartley Botanic” greenhouses under heading 9406, HTSUSA. In contrast to the subject merchandise, the greenhouses had walls and roofs made of glass panes fitted within a stainless steel and aluminum framework and brickwork or stonework was used for the base or foundation. Furthermore, the greenhouses were stand-alone units and included a heating and ventilation system. Thus, we find that the subject greenhouses are quite different from greenhouses previously classified under heading 9406, HTSUSA.
The subject greenhouses are also distinguishable from other structures that have been classified as prefabricated buildings of heading 9406, HTSUSA. In HQ 083801, dated June 6, 1989, Customs classified storage units with steel walls, roofs and doors and wooden flooring under heading 9406, HTSUSA. In HQ 083442, dated August 18, 1989, Customs classified prefabricated Quonset buildings made of galvanized steel assembled on concrete foundations under heading 9406, HTSUSA. In NY 817020, dated December 22, 1995, Customs classified free standing garden sheds made from resin coated ribbed steel sheeting under heading 9406, HTSUSA. In NY A89444, dated December 12, 1996, Customs classified a “Sukkah” constructed of plastic panels of corrugated polyvinyl chloride or other plastic laminates linked together by aluminum extrusions under heading 9406, HTSUSA. In NY C86564, dated May 5, 1998, Customs classified the “Medserve 2000”, a fully equipped prefabricated modular building designed to be erected quickly to create a medical center in remote areas, under heading 9406, HTSUSA. The Medserve was made of plastic-coated steel panels supported by a steel framework and contained furnishings and equipment such as water piping, boiler, sanitary fittings, electrical switchgear, wiring and fittings and conduits. In NY C87491, dated May 26, 1998, Customs classified conservatories with walls, roofs and doors composed of glass panes supported by a hardwood framework and stone or terra cotta tile flooring under heading 9406, HTSUSA. We find that the subject greenhouses are distinguishable. In comparing these cases to the subject merchandise, we find that the subject greenhouses are of less substantial materials and construction than the structures previously classified under heading 9406, HTSUSA.
II. Heading 6306, HTSUSA
Heading 6306, HTSUSA, provides for “Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards or landcraft; camping goods.” The ENs for heading 6306, HTSUSA, state that the heading covers a range of textile articles usually made from strong, close-woven canvas. With respect to tents, the ENs for heading 6306, HTSUSA, provide the following:
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.
The subject merchandise fits the description of the articles described by the ENs. As stated in HQ 962129, dated June 11, 1999, the term “shelter” has been defined simply as something that provides cover or protection. The subject merchandise does provide cover or protection and is a shelter as contemplated by the heading. The merchandise at issue is composed in part of textile fabric. The merchandise has a roof and walls which permit the formation of an enclosure. Since the heading covers tents of various sizes, shapes and uses, a tent for use as a greenhouse would be included within the broad nature of articles covered by the heading. The subject merchandise has “tent poles” in the form of metal tubing or beams and it is fastened to the ground by fabric loops and stakes similar to “tent pegs.” Although the instant greenhouse cannot be set up and taken down easily because the screws attaching the fabric to the frame are actually inserted through the fabric, it does not preclude its classification as a tent. Thus, we find that the physical characteristics of subject merchandise fit within the scope of heading 6306, HTSUSA. Although the subject merchandise possesses some qualities unique to greenhouses, we do not find that they place the merchandise beyond the scope of the heading.
As stated in HQ 962129, heading 6306, HTSUSA, is broad enough to encompass a variety of tents so long as they provide minimal protection from the elements. 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. The subject merchandise will primarily be used to protect plants from cold or inclement weather and, thus, provides the minimal protection from the elements required by the heading. In every submission, you have emphasized that the merchandise is a “greenhouse.” Unfortunately, there is no heading that specifically covers “greenhouses.” Thus, the issue in this case is whether or not this particular “greenhouse” is classifiable as a tent of heading 6306, HTSUSA, or a prefabricated building of 9406, HTSUSA.
Customs has classified similar tent-like articles under heading 6306, HTSUSA. In HQ 086548, dated April 12, 1990, Customs classified a car shelter used to protect cars and other items from winter’s harsh effects under heading 6306, HTSUSA. The car shelter was constructed of electrostatically galvanized steel tubing, a woven polyolefin material covering, and lacing of unspecified materials for holding the covering to the tubes. In HQ 962147, dated April 6, 1999, Customs classified hunting blinds used to provide hunters with camouflage and concealment under heading 6306, HTSUSA. The hunting blinds were constructed of a waterproof lightweight woven camouflage pattern fabric, hung over a pole frame made either of steel or fiberglass and featured openings on all four sides. In NY 855160, dated September 5, 1990, Customs classified shade ports used to protect vehicles from the elements of nature under heading 6306, HTSUSA. The shade ports were constructed of knit fabric attached over cold rolled steel tubing formed to create a desired design. In NY 886909, dated June 16, 1993, Customs classified a gazebo presented with a carry bag under heading 6306, HTSUSA. The gazebo consisted of roof and corners made of woven polyethylene fabric with plastic coating, a metal frame and ground stakes. In NY 805471, dated January 11, 1995, Customs classified portable temporary shelters used as storage buildings, greenhouses or garages, gazebos or sun shelters, under heading 6306, HTSUSA. The shelters consisted of a lightweight cover fastened onto a collapsible frame made of aluminum ribs attached to a plastic pivot which allowed the shelter to open easily at either end and to remain partially open. In applying these rulings to the subject merchandise, we find that the subject merchandise is similar to the articles described in these rulings and is, thus, classifiable under heading 6306, HTSUSA.
HOLDING:
The subject merchandise is classifiable in subheading 6306.22.9030, HTSUSA, which provides for tents: of synthetic fibers: other: other. The applicable general column one rate of duty is 9.2 percent ad valorem and the quota category is 669.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division