CLA-2 RR:TC:MM 958001 RFA
Port Director
U.S. Customs Service
127 North Water Street
Ogdensburg, New York 13669
RE: Protest 0712-94-101166; "Aluminum Hall" Coated
Fabric/Aluminum structures; Fabricated Buildings; Tents;
Headings 6306 and 9406; Legal Note 4 to Chapter 94; Legal
Note 1(h) to section XI; EN 63.06, 94.06; HQ 958745; NYRL
897884
Dear Port Director:
The following is our decision regarding Protest 0712-94-101166, which concerns the classification of an "Aluminum Hall"
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The provided literature describes the subject merchandise,
"Aluminum Hall" structures, as pre-engineered, freespan, modular
fabric tension structures that are 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 accounts for
approximately 80 percent of the total cost) is composed of
extruded aluminum box beams with an integrated channel system.
The roofing membrane is composed of a polyester fabric that is
visibly coated on both sides with polyvinyl chloride (PVC). The
roofing membrane is inserted in the integrated channel system and
tensioned between each frame. The sidewalls of the structures
are typically manufactured of rigid panels (said to be composed
of fiberglass) that measure approximately 3 feet in width by 9
feet in height.
The combined components form units measuring 16 feet in
length and from 16 to 132 feet in width, depending upon need.
Units may be joined together to form structures of whatever size
desired. The structures are freestanding (without internal
columns or ropes) and capable of supporting heavy appliances
(e.g., lighting, sprinklers, etc.). A sample swatch of the PVC-coated polyester roofing membrane, and sample sections of the
aluminum frame and sidewall panel were submitted. The panel
sample is actually composed of fiberglass-reinforced plastic
resin that is molded to shape.
The merchandise was entered under subheading 9406.00.80,
HTSUS, as other prefabricated buildings. The entry was liquidated
on September 2, 1994, under subheading 6306.22.9030, HTSUS,
textile category 669, the provision for other tents. The protest
was timely filed on October 19, 1994.
The subheadings under consideration are as follows:
6306.22.9030: Tarpaulins...tents...camping goods: [t]ents:
[o]f synthetic fibers: [o]ther, [o]ther. . .
"
Goods classifiable under this provision have a general,
column one rate of duty of 10 percent ad valorem.
9406.00.80 Prefabricated buildings: [o]ther. . . .
.
Goods classifiable under this provision have a general,
column one rate of duty of 5.7 percent ad valorem.
ISSUE:
Whether the merchandise is classifiable under heading 9406,
HTSUS, as prefabricated buildings; or under heading 6306, HTSUS,
as tents?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
The protestant claims that the subject merchandise is
provided for under heading 9406, HTSUS, which covers
prefabricated buildings. Legal Note 4 to chapter 94, HTSUS,
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 Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the HTSUS. While not legally binding or dispositive, the ENs
provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of
these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23,
1989). EN 94.06, at page 1582, states, in pertinent part, that:
This heading covers prefabricated buildings, also known
as "industrialised buildings", of all materials. (emphasis
added)
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.
In support of the claimed classification, the protestant
cites to New York Ruling Letter (NYRL) 897884, issued on June 8,
1994, in which a filtration center/pool shed and an octagon
shaped pavilion were classified as a prefabricated building in
subheading 9406.00.80, HTSUS. The shed classified in that ruling
was described as a small building equipped with a door, a lock,
windows, and four walls and a roof made of hard durable PVC. The
pavilion was described as having a roof made completely of PVC
material and the walls and door consisting of PVC frames with
screen.
We believe that the "Aluminum Hall" meets the definition of
"prefabricated buildings". This provision allows for structures
made of any material to be classified here so long as it can be
used as one of the types of buildings listed in Legal Note 4 to
chapter 94, HTSUS, or in EN 94.06. According to the provided
literature, the "Aluminum Hall" are pre-engineered, freespan,
modular fabric tension structures that are designed to withstand
high winds, shed snow, and provide durable, safe, and economical
temporary shelter where speed of installation or relocation is
essential. The fact that the roof of the subject merchandise is
not made of a hard substance is not relevant for classification
purposes so long as it is capable of providing cover from the
elements of the weather. Because the "Aluminum Hall" meets the
definition of "prefabricated buildings", we find it is
classifiable in heading 9406, HTSUS. See NYRL 897884.
You indicated that the "Aluminum Hall" is provided for under
heading 6306, HTSUS, which covers tents. The EN to heading 6306,
page 867, indicates that tents are shelters of fabric (usually
with a roof and sides or walls that permit the formation of an
enclosure) and that the heading covers tents of various sizes,
shapes, and uses, whether or not coated or laminated, and whether
or not presented with poles, pegs, ropes, or other accessories.
Chapter 63 falls within section XI, HTSUS, which covers textiles
and textile articles. Legal Note 1(h) to section XI, HTSUS,
states that "This section does not cover: Woven, knitted or
crocheted fabrics, felt or nonwovens, impregnated, coated,
covered or laminated with plastics, or articles thereof, of
chapter 39." Since the roofing membrane of the "Aluminum Hall"
structures is composed of polyester fabric that is visibly coated
on both sides with PVC, a plastic classifiable in chapter 39,
HTSUS, the structures are excluded from heading 6306, HTSUS, and
are not classifiable as tents.
We further note that the Area Director of Customs, New York
Seaport, issued NYRL 811376, on June 27, 1995, classifying the
"Aluminum Hall" structural units under subheading 7610.90.00,
HTSUS, which provides for: "[a]luminum structures (excluding
prefabricated buildings of heading 9406) and parts of structures
. . . ; aluminum plates, rods, profiles, tubes and the like,
prepared for use in structures: [o]ther. . . ." However, in HQ
958745, issued on February 6, 1996, Customs revoked NYRL 811376,
and classified the "Aluminum Hall" structural units under heading
9406, HTSUS.
HOLDING:
The articles identified as "Aluminum Hall" structures are
properly classified in subheading 9406.00.80, HTSUS, which
provides for: "Prefabricated buildings: [o]ther
. . . . " Goods classifiable under this provision have a
general, column one rate of duty of 5.7 percent ad valorem.
The protest should be GRANTED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, should be mailed by your office 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 take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division