CLA-1 CO:R:C:G 085410 KWM
TARIFF: 6810.19.1000, 6810.19.5000
Mr. John M. Peterson
Neville, Peterson & Williams
39 Broadway
New York, New York 10006
RE: Request for reconsideration of HQ 084172,
stone building components
Your reference: 211-01
Dear Mr. Peterson,
We have received your request for reconsideration of
Headquarters Ruling 084172, regarding the classification of stone
building components. Upon careful consideration of your
submission, we have determined that the ruling is correct, and
will not be modified or revoked by this office.
FACTS
The facts are set out in HQ 084172, and will not be repeated
in detail here. Essentially, your request for reconsideration
disputes our determination that the smaller building components,
measuring 12 inches square, were "tiles" as that term is used in
heading 6810.19.1000 of the Harmonized Tariff Schedule of the
United States Annotated (hereinafter "HTSUSA"). Your original
request referred to these articles as "tiles" used for flooring.
However, in your reconsideration request, dated August 27, 1989,
you assert that the term "tiles" as used in 6810.19.1000, HTSUSA,
is limited to "small articles having the facial or surface area
of less than 25.8 square cm.". That assertion is based on a
reading of the Chapter 68 Chapter Notes, and an inference
concerning the references therein to the use of the terms "slab"
and "tile".
ISSUE
Are the smaller building components classifiable in
6810.19.1000, HTSUSA, as "floor and wall tiles", or in
6810.19.5000, HTSUSA, as "other articles of artificial stone"?
LAW AND ANALYSIS
The terms of heading 6810, HTSUSA, read, in pertinent part:
6810 - Articles of cement, of concrete or of artificial
stone, whether or not reinforced:
Tiles, flagstones, bricks and similar
articles:
6810.11 Building blocks and bricks................
6810.19 Other:
6810.19.1000 Floor and wall tiles.................
6810.19.5000Other................................
(Emphasis added). The Section and Chapter Notes, which
constitute the legally binding interpretation of the HTSUSA,
contain the following Additional U.S. Notes:
1. For the purposes of heading 6802, the term "slabs"
embraces flat stone pieces, not over 5.1 cm. in
thickness, having a facial area of 25.8 cm2 or more,
the edges of which have not been beveled, rounded or
otherwise processed except such processing as may be
needed to facilitate installation as tiling or
veneering in building construction.
2. For the purposes of heading 6810, the term "tiles"
does not include any article 3.2 cm or more in
thickness.
The Explanatory Notes, which are not legally binding, do not
significantly address the subheadings in question.
The analysis in your reconsideration request is premised on
the assumption that the Additional U.S. Notes to Chapter 68,
taken together, draw a clearly defined distinction between
"slabs" and "tiles" as those terms are used in the chapter. That
distinction is one based on an inference that the inclusion of
surface area dimensions for "slabs" thereby, expressio unius,
defines the surface area dimensions for "tiles". It is the
opinion of this office that such a negative inference cannot be
drawn from the Additional U.S. Notes.
We note that the terms "slabs" and "tiles" occur throughout
Chapter 68, and that a reading of the headings, Legal Notes and
Explanatory Notes in pari materia, leads to the conclusion that
the terms have particular meanings, which are determined by the
context of their use. Furthermore, those meanings are not
distinctly opposite throughout the chapter, or in a consistent
manner. For example, although you assert that, in all headings
of Chapter 68, HTSUSA, "tiles" must, by negative inference, be
articles with a surface area less than 28.5 cm2, the term "tiles"
is specifically defined in heading 6802.10.0000, as an article:
. . . the largest surface area of which is capable of
being enclosed in a square the side of which is less
than 7 cm . . .
Such articles would have a surface area less than 49 cm2,
considerably larger than the suggested 28.5 cm2.
As noted, we agree that the terms of Chapter 68, and indeed
the entire tariff schedule, must be considered in pari materia,
and that all the terms of the schedule must have meaning.
However, we are of the opinion that the Additional U.S. Notes
apply only to the tariff heading to which the notes, by their
terms, refer. Despite your contention to the contrary, the
drafters of the HTSUSA clearly manifested their intent to
restrict the definitions of the terms "slab" and "tile" by
referring to a specific heading in each note. It is our opinion
that a rigid, uniform application of a "tile" or "slab"
definition throughout the chapter was not, and is not,
contemplated by the Nomenclature.
Additional U.S. Note 1 begins: "for the purposes of heading
6802 . . .". In heading 6802, HTSUSA, the term "slabs" is used
as a subheading under the basket provision for "Other" worked
monumental or building stone. It does not occur elsewhere in the
heading. A careful reading of the U.S. Note, and a comparison of
the subheadings at the same (8-digit) level clearly shows that
the distinction to be made between "slabs" of heading 6802.91.05,
HTSUSA, and "other" articles of 6802.91.15, HTSUSA, is that of the
degree of working or processing to which the articles have been subjected.
Such a distinction, based on the degree of work performed, is
further evidenced by the terms of other subheadings under 6802,
HTSUSA (See, e.g., subheading 6802.91.20, HTSUSA). The result is
that "slabs", as defined in Additional U.S. Note 1, are
classified separately from monumental or building stone which has
been subjected to substantial working or processing. There is no
need for a tile/slab dichotomy in heading 6802, HTSUSA, since the
term "tile" is defined specifically in the context of its use, as
noted above.
Additional U.S. Note 2 begins: "For the purpose of heading
6810. . .", expressly addressing itself to the use of the term
"tile" in that heading. It does not, in our opinion, provide a
definitive description of "tiles" for use in all headings of the
chapter. Notes in other areas of the Nomenclature which apply
throughout a chapter state explicitly that they are to be applied
"[F]or the purposes of this chapter. . ." (see, e.g., Additional
U.S. Note 1, Chapter 39, HTSUSA). The context in which the term
is used in heading 6810 also makes it clear that thickness is the
principal distinguishing factor among the heading and subheading
classifications. "Tiles" are distinguishable from the other
articles specifically classified in heading 6810, such as
"bricks" or "blocks", on the basis of thickness.
We note that, under a strict application of the provisions
of Additional U.S. Note 2, all of the products included in your
original request could be classified under 6810.19.10, HTSUSA,
and dutiable at 21% ad valorem. However, having read Chapter 68
and the accompanying Notes in pari materia, we are of the opinion
that the term "tiles" does not encompass articles which are so
large that they cannot rationally be considered "tiles". It was
in this light that we compared the large building components to
the "slabs" of heading 6802, and found them to be ejusdem
generis. We did not, as your letter suggests, purport to make
the concept of "slabs" in heading 6802, HTSUSA, "applicable with
equal force to the classification of 'artificial stone' articles
in HTS 6810". Our intent was simply to illustrate that larger
articles are contemplated by the Nomenclature. In terms of
heading 6810, those types of articles are properly classified as
items "other" than tiles.
We did not, nor do we now, intend to specify precise
dimensions or surface areas which will define "tiles" and "other"
articles for the purposes of heading 6810, HTSUSA, other than
those found in the relevant Legal Notes. In our opinion, the
principal use of the term "tile(s)" in the stone or similar
industries, is in reference to products having sides which
measure up to 18 inches. Again, we are not prescribing absolute
limits or dimensions in this regard. However, given these
general guidelines, it is clear that articles such as the small
building components addressed in your original request would be
considered a "tile" in the stone trade, and they are classified
as such.
HOLDING
We affirm Headquarters Ruling Letter 084172, classifying
stone building components composed of marble or stone chips
agglomerated with plastic resins.
The large sized components, measuring 11 feet by 4 feet, and
having a thickness of + inch, are classified in subheading
6810.19.5000, HTSUSA, and are dutiable at the rate of 4.9% ad
valorem.
The small sized components, measuring 12 inches by 12
inches, and having a thickness of + inch, are classified as
"tiles" as that term is used in subheading 6810.19.1000, HTSUSA,
and are dutiable at the rate of 21% ad valorem.
Sincerely,
John Durant, Director