CLA-2 CO:R:C:M 954912 KCC
District Director
U.S. Customs Service
555 Battery Street
San Francisco, California 94111
RE: Protest No. 2809-93-101259; floor tile; other artificial
stone tile; 6810.19.12; other agglomerated marble tile; HRL
085266; geological definition; GRI 3(b); essential
character; EN Rule 3(b); laboratory report
Dear District Director:
This is in response to the Application for Further Review of
Protest No. 2809-93-101259, which pertains to the tariff
classification of floor tile under the Harmonized Tariff Schedule
of the United States (HTSUS).
FACTS:
The entry of the floor tile was liquidated on May 14, 1993,
under subheading 6810.19.14, HTSUS, as other artificial stone
tile. This determination was based on Customs laboratory report
#8-93-20515-001 dated April 20, 1993, which found that the
submitted floor tile described as "Cement/Marble Chips/Granite
(Beige with Glass & Marble Chips)" is a doubled-layer tile. The
bottom layer is concrete and the top layer is white cement
agglomerated with glass, black stone and marble chips. The
laboratory report opined that the sample was "other agglomerated
tile; a floor tile." In July 1993, Customs personnel in San
Francisco re-confirmed that approximately 30% of the floor tile
is geological marble.
In a protest timely filed on July 19, 1993, the protestant
contends that the floor tile is classified under subheading
6810.19.12, HTSUS, as other agglomerated marble tile. The
protestant contends that the Customs laboratory report is in
error. As evidence, the protestant has submitted an independent
laboratory report which found that 59.19% of the floor tile was
marble CACO3. The breakdown is as follows:
Backing: Grey Cement 350 11.6%
Marble CACO3 15.83%
Wear Layer: Marble CACO3 14.5%
Marble CACO3 of ciment 3.74%
White cement 7.96%
Marble CACO3 25.12&
Granite 3.20%
Glass 2.66%
Total: 84.61%
The competing subheadings are:
6810.19 Articles of cement, of concrete or of artificial stone,
whether or not reinforced... Tiles, flagstones, bricks
and similar articles...Other...Floor and wall tiles...
6810.19.12 Agglomerate marble tiles
6810.19.14 Other
ISSUE:
Is the floor tile classified as other agglomerate marble
tile under subheading 6810.10.12, HTSUS, or as other artificial
stone tile under subheading 6810.19.14, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). 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...." The floor tile is
classified under subheading 6810.19, HTSUS, which provides for
"Articles of cement, of concrete or of artificial stone, whether
or not reinforced... Tiles, flagstones, bricks and similar
articles...Other...Floor and wall tiles...." The issue to be
decided is whether the floor tile is composed of agglomerated
marble or of other artificial stone.
In Headquarters Ruling Letter (HRL) 085266, dated September
20, 1989, we held that stone products are classified according to
their geological definition rather than their trade name. HRL
085266 dealt with the classification of tiles that were invoiced
as marble. A laboratory analysis determined that the tiles were
geological limestone, not geological marble. Since limestone and
marble are distinct stones with different geological properties,
HRL 085266 held that polished limestone was not classifiable as
marble under subheading 6802.91, HTSUS. Rather, it was
classifiable under subheading 6802.92, HTSUS, as other calcareous
stone. Therefore, despite the fact that polished limestone is
often referred to as "marble" in the trade, it was the geological
definition that was used in determining the tariff classification
of the tiles under the HTSUS.
Under the Tariff Schedule of the United States (TSUS) (the
precursor tariff schedule to the HTSUS), stones were often
classified by their trade names whether or not they met the
geological definition of the stone. However, under the HTSUS, it
is imperative that the United States, whenever possible, define
the various tariff terms in a manner consistent with all nations
utilizing the HTS. It is for this reason that we have settled
upon the commonly-accepted geological definition of various
stones to determine the proper classification under the HTSUS.
The floor tile at issue is composed of different types of
stone, i.e., marble, limestone, granite, agglomerated with
binders. In this case, pursuant to GRI 2(b), HTSUS,
classification is determined by application of GRI 3(b), HTSUS,
which provides:
Mixtures, composite goods consisting of different materials
or made up of different components...which cannot be
classified by reference to 3(a), shall be classified as if
they consisted of the material or component which gives them
their essential character....
In general, essential character has been construed to mean
the attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In addition, Explanatory Note (EN)
Rule 3(b) of the Harmonized Commodity Description and Coding
System (HCDCS) (pg. 4), provides further factors which help
determine the essential character of goods. Factors such as
bulk, quantity, weight or value, or the role of a constituent
material in relation to the use of the goods are to be utilized,
though the importance of certain factors will vary between
different kind of goods.
Therefore, if more geological marble is present than other
stone, the essential character of the floor tile would be marble
and the floor tile would be classified as agglomerated marble
tile under subheading 6810.19.12, HTSUS. However, if more of the
other stone is present, the essential character of the floor tile
would be other stone and the floor tile would be classified as
other agglomerate stone tile under subheading 6810.19.14, HTSUS.
The Customs laboratory report found that the top layer of
the floor tile is composed of concrete and the bottom layer is
composed of marble chips, other stone chips and glass
agglomerated with cement. Furthermore, the laboratory report
found that the geological marble portion of the floor tile
constitutes approximately 30% of the tile. Therefore,
approximately 70% of the tile is attributed to limestone, glass,
granite, etc. Since 70% of the tile is attributed to other
stones, we are of the opinion that the essential character of the
floor tiles is not geological marble but other artificial stone.
Therefore, the floor tile is classified under subheading
6810.19.14, HTSUS, as other agglomerated stone tile.
In cases such as this, where a party submits an outside
report that differs from the Customs laboratory report, the
Customs laboratory report cannot be disregarded and, therefore,
takes precedence over the outside report. Customs Directive 099
3820-002 dated May 4, 1992. In administering the HTSUS, Customs
must be consistent while classifying the same type of merchandise
entering the U.S. In order to consistently classify stone
products according to their geological make up, the same
laboratory analysis must be executed throughout Customs. Customs
cannot rely on outside reports which may or may not utilize
different testing methods and still remain consistent in its
tariff classification. Additionally, Customs does not have any
evidence that the merchandise tested by the outside laboratory is
the same merchandise that was imported into the U.S. Therefore,
Customs must rely on its own laboratory analysis when determining
the proper tariff classification of merchandise.
Moreover, the independent laboratory report is suspect in
this case. Upon adding up the breakdown percentages, a figure of
84.61% is reached and not a 100% figure. Additionally, there are
two figures for Marble CACO3, as well as a figure for Marble
CACO3 of ciment in the wear layer breakdown.
Finally, please note that the classification of agglomerated
stone tiles is being contested in a pending case before the U.S.
Court of International Trade. Color Tile vs. United States
(Civil Action 91-12-00909).
HOLDING:
The floor tile is classified under subheading 6810.19.14,
HTSUS, as other artificial stone tile and, therefore, the protest
should be denied.
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