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HQ 958001




February 6, 1996

CLA-2 RR:TC:MM 958001 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9406.00.80

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

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