CLA-2 CO:R:C:M 954292 KCC
District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, Room 2017
San Pedro, California 90731
RE: Protest No. 2704-92-102759; ceramic pavement markers;
6904.90.00; EN 69.04; 6905.90.00; EN 69.05; used in
constructional or building work; EN 69.08; EN 69.07; HRL
085566; not for structural purposes; NY 865407; 6914.10.00;
EN 69.14
Dear District Director:
This is in response to the Application for Further Review of
Protest No. 2704-92-102759, which pertains to the tariff
classification of ceramic pavement markers under the Harmonized
Tariff Schedule of the United States (HTSUS). Two samples were
submitted for examination.
FACTS:
The articles at issue are non-reflective glazed ceramic
pavement markers ("pavement markers"), also referred to as
traffic buttons. The pavement markers are used on roads,
highways and freeways to guide the flow of vehicular traffic and
for pedestrian crossings. The pavement markers are fixed to
existing road surfaces with cement or other adhesives. The two
samples are described as follows:
1) Round in shape measuring approximately 10.16 cm in
diameter with a thickness of 1.9 cm.
2) Square shaped, referred to as a "jiggle bar ceramic
marker", measuring approximately 15.24 cm on each side
with a thickness of 2.5 cm.
The entries of the pavement markers were liquidated starting
on April 10, 1992, under subheading 6914.10.00, HTSUS, as other
ceramic articles. In a protest timely filed on July 9, 1992,
counsel contends that the pavement markers are classified under
subheading 6904.90.00, HTSUS, as other ceramic building bricks,
flooring blocks, support or filler tiles and the like, or
alternatively under subheading 6905.90.00, HTSUS, as other
ceramic constructional goods. Furthermore, it has been brought
to the attention of this office that classification under
subheading 6908.90.00, HTSUS, as other glazed ceramic flags and
paving, hearth or wall tiles should be examined.
The competing subheadings are:
6904.90.00 Ceramic building bricks, flooring blocks, support
or filler tiles and the like...Other.
6905.90.00 Roofing tiles, chimney pots, cowls, chimney
liners, architectural ornaments and other ceramic
constructional goods...Other....
6908.90.00 Glazed ceramic flags and paving, hearth or wall
tiles; glazed ceramic mosaic cubes and the like,
whether or not on a backing...Other.
6914.10.00 Other ceramic articles...Of porcelain or china.
ISSUE:
Are the ceramic pavement markers classified as other ceramic
building bricks, flooring blocks, support or filler tiles and the
like under subheading 6904.90.00, HTSUS, or as other ceramic
constructional goods under subheading 6905.90.00, HTSUS, or as
other glazed ceramic flags and paving, hearth or wall tiles under
subheading 6908.90.00, HTSUS, or as other ceramic articles under
subheading 6914.10.00, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRIs). GRI 1,
HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes...."
In understanding the language of the headings of the HTSUS,
the Harmonized Commodity Description and Coding System (HCDCS)
Explanatory Notes (ENs) may be utilized. The ENs, although not
dispositive, are to be used to determine the proper
interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989). EN 69.04 (pg. 917) states that:
This heading covers non-refractory ceramic bricks (i.e.,
bricks unable to withstand temperatures of 1,500 degrees
Celsius or higher) of the kinds commonly used for building
walls, houses, industrial chimney-stacks, etc. Such bricks
remain in the heading even if they can also be used for
other purposes (e.g., vitrified bricks which can be used for
paving or bridge piling, as well as for the construction of
buildings)...
This heading includes:
(1) Ordinary solid bricks of rectangular shape, with flat
or indented surfaces.
(2) Curved bricks, sometimes perforated, for industrial
chimney-stacks.
(3) Hollow bricks, perforated bricks; long hollow flooring
blocks and constructional slabs used particularly for
flooring, ceilings, etc., in combination with
structural steelwork, and support or filler tiles
(i.e., ceramic fittings designed to support the blocks
while encasing the girders).
(4) Facing bricks (e.g., for facing houses or walls, the
surrounds of doors or windows, including special bricks
for column capitals, borders, friezes or other
architectural decoration).
EN 69.05 (pg. 918) states that "[t]his heading covers a
range of non-refractory goods, usually of common pottery but
sometimes more or less vitrified, which, like bricks, are used in
constructional or building work.
It includes:
(1) Roofing tiles (for roofs, for topping walls, etc.).
These are usually provided with nibs, holed for
nailing, or may be moulded to interlock, and in this
respect different from the tiles of headings 69.07 and
69.08. They may be flat, half cylinders or of special
shapes for eaves, ridges, hips or valleys, etc.
(2) Chimney-pots, cowls, chimney liners, flue-blocks, etc.
(3) Architectural ornaments for use on buildings, walls,
gates, etc. (e.g., cornices and friezes); gargoyles;
pediments, rosettes, balustrades, corbels, capitals;
gable-end, eave, ridging and roof ornaments, etc.
(4) Other ceramic constructional goods, e.g. ventilator
grills; clay-lath used as support for plasterwork and
formed of wire mesh with fired clay crosses or plates
at the intersections, the fired clay forming the major
constituent."
The ENs to 69.07 and 69.08 state that these headings cover
articles that are used in constructional or building work. The
ENs indicate that articles classified in these headings are used
or have the potential to be used for their structural value.
However, the pavement markers are not designed or used for
structural purposes. The pavement markers are fixed by cement or
other adhesives to an existing surface to guide the flow of
vehicular or pedestrian traffic. The pavement markers do not
satisfy the terms of subheading 6904.90.00 or 6905.90.00, HTSUS.
Accordingly, the pavement markers are not properly classified
within these subheadings.
EN 69.08 (pg. 920) states that heading 6908, HTSUS, covers
the articles of the heading 6907, HTSUS, which have been glazed.
EN 69.07 (pg. 919) states that:
This heading covers ceramic flags and tiles, including
quarry tiles, commonly used for paving or for facing walls,
hearths, etc....
Flags and paving, hearth or wall tiles are thinner in
relation to their surface dimensions than are building
bricks. Whereas bricks play an essential part in
constructional work, forming the very framework of the
building, flags and tiles are more especially intended for
fixing by cement, adhesive or by other means to the surface
of existing walls, etc....
EN 69.08 indicates that ceramic flags and tiles are thinner
in relation to their surface dimensions than are building bricks.
The flags and tiles of heading 6908, HTSUS are not designed or
used for structural purposes but are bonded by cement or other
adhesives to an existing surface. The composition of the ceramic
(porcelain, china, etc.) does not affect classification within
heading 6908, HTSUS. See, Headquarters Ruling Letter (HRL)
085566 dated January 2, 1989, which classified thin veneer brick
under subheading 6907.90.00, HTSUS, based on the principal
distinction drawn by the ENs between building bricks (headings
6904 and 6905, HTSUS) and tiles (headings 6907 and 6908, HTSUS)
of their potential for structural use.
The pavement markers are ceramic articles which meet the
requirements of heading 6908, HTSUS. The pavement markers are
thinner in relation to their surface area. They are not similar
to building bricks because they are not designed or used for
structural purposes. The pavement markers are attached to an
existing roadway by means of cement or other adhesives to guide
the flow of vehicular or pedestrian traffic.
Consideration was given to whether the phrase "commonly used
for paving or for facing walls, hearths, etc." in EN 69.07
implies that complete coverage or cladding of a surface must take
place for articles to be classified as ceramic flag and tiles of
heading 6908, HTSUS. This interpretation would exclude the
pavement markers from classification under this heading because
they never completely cover a street, highway, parking lot, etc.
The pavement markers are singly cemented to an existing surface
to form lines that guide the flow of vehicular or pedestrian
traffic. We do not agree with this opinion. Although EN 69.07
states that "flags and tiles are commonly used for paving or for
facing...", it does not limit the articles of this heading to
those which only completely cover a surface area.
We are of the opinion that the pavement markers satisfy the
terms of heading 6908, HTSUS. Therefore, they are classified
under subheading 6908.90.00, HTSUS, as other glazed ceramic flags
and paving, hearth or wall tiles. See, New York (NY) 865407
dated August 6, 1991, which classified ceramic tiles used for
dividing traffic lanes during construction under subheading
6908.90.00, HTSUS.
Heading 6914, HTSUS, which provides for "Other ceramic
articles", is an unlimited general description provision that
does not specifically name and describe goods. EN 69.14 (pg.
924) states that "[t]his heading covers all ceramic articles not
covered by other headings of this Chapter or in other Chapters of
the Nomenclature." As stated previously, the pavement markers
are provided for in heading 6908, HTSUS. Therefore, they are not
classifiable under heading 6914, HTSUS.
HOLDING:
The ceramic pavement markers are classified under subheading
6908.90.00, HTSUS, as other glazed ceramic flags and paving,
hearth or wall tiles. Inasmuch as the rate of duty under the
classification indicated is more than the liquidated rate, you
should deny the protest in full.
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, Lexis, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director