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HQ 958745




February 6, 1996

CLA-2 RR:TC:MM 958745 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9406.00.80

Mr. Charles Ballantyne
Universal Fabric Structures
4259 East Landis Street
Coopersburg, PA 18036

RE: "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; Headings 6306, 7610; 9406; EN 63.06, 94.06; NY 897884; NY 811376, revoked

Dear Mr. Ballantyne:

This is in reference to NY 811376 issued to you on June 27, 1995, by the Area Director of Customs, New York Seaport, concerning the tariff classification of an "Aluminum Hall" under the Harmonized Tariff Schedule of the United States (HTSUS). In the course of ruling on similar merchandise, we have determined that NY 811376 is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057)(1993), notice of the proposed revocation of NY 811376 was published on January 3, 1996, in the Customs Bulletin, Volume 30, Number 1. No comments were received in response to the notice.

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.

ISSUE:

Whether the merchandise is classifiable under heading 7610, as aluminum structures, or 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.

In NY 811376, issued on June 27, 1995, by the Area Director of Customs, New York Seaport, "Aluminum Hall" structural units were classified under subheading 7610.90.00, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: "[a]luminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-sections, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles, tubes and the like, prepared for use in structures: [o]ther. . . ."

However, to be classified under heading 7610, HTSUS, an article cannot be classifiable under heading 9406, HTSUS, as a prefabricated building. 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 NY 897884, issued on June 8, 1994, Customs classified a filtration center/ pool shed and an octagon shaped pavilion as prefabricated buildings 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 precluded from classification under heading 7610, HTSUS, and is properly classifiable in heading 9406, HTSUS. See NYRL 897884.

Because the "Aluminum Hall" uses a type of fabric in its roof or walls, classification under heading 6306, HTSUS, which covers tents, was considered. 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." Because 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.

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.

EFFECT ON OTHER RULINGS:

NY 811376, issued on June 27, 1995, is revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director

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