CLA-2 RR:CR:GC 960511 PH
Port Director
U.S. Customs Service
C/O Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest 1001-97-101614; other granite; table tops; parts of
furniture; slabs; sheets; Note 3(a), Chapter 94; Additional U.S.
Note 1, Chapter 68; ENs 68.02; 94.01; HQs 084608; 085410
Dear Port Director:
This is in response to Protest 1001-97-101614, which
pertains to the tariff classification of granite table tops under
the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise consists of 50 granite polished table tops.
The dimensions are 313 centimeters X 150 or 158 cemtimeters, and
the table tops are 2 centimeters thick.
One entry dated June 9, 1996, is included in the protest.
Claimed classification by the importer for the table tops was
subheading 9403.80.60, HTSUS. The entries were liquidated on
December 13, 1996, with classification under subheading
6802.93.00, HTSUS.
On February 27, 1997, the importer, through its broker,
filed the protest. The protestant argues that the merchandise is
"specifically made as table tops and should be classified ... as
parts of furniture." The protestant contends that there is a
contradiction between the provision in Chapter 94 providing that
references to parts of goods in heading 9401 or 9403 do not
include references to sheets or slabs of glass, marble or other
stone or any other material referred to in Chapter 68 or 69 and
the definition in Additional U.S. Note 1 to Chapter 68, HTSUS, of
"slabs." On the basis of that definition, the protestant
contends that "... granite table tops which have been imported
specifically for use with tables [with] rounded or beveled edges
... cannot be classified under [C]hapter #68." The protestant
claims that the correct classification for the merchandise is as
originally classified, in Chapter 94, HTSUS.
The competing subheadings, as of the time under
consideration, are as follows:
6802.93.00 Worked monumental or building stone (except slate)
and articles thereof, other than goods of heading
6801; mosaic cubes and the like, of natural stone
(including slate), whether or not on a backing;
artificially colored granules, chippings and
powder, of natural stone (including slate): ...
Other: Granite.
The 1996 general column one rate of duty for goods classifiable
under this subheading is 4% ad valorem.
9403.80.60: Other furniture and parts thereof: ... Furniture
of other materials, including cane, osier, bamboo
or similar materials: ... Other.
The 1996 general column one rate of duty for goods classifiable
under this subheading is 2.4% ad valorem.
9403.90.80: Other furniture and parts thereof: ... Parts: ...
Other: ... Other.
The 1996 general column one rate of duty for goods classifiable
under this subheading is 2.4% ad valorem.
ISSUE:
Are the granite table tops classified as other granite in
subheading 6802.93.00, HTSUS, furniture of other materials in
subheading 9403.80.60, HTSUS, or other parts of furniture in
subheading 9403.90.80, HTSUS?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRIs). GRI 1,
HTSUS, states, in pertinent part, that for legal purposes,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes.
The ENs constitute the official interpretation of the
Harmonized System. While not legally binding on the contracting
parties, and therefore not dispositive, the ENs provide a
commentary on the scope of each heading of the Harmonized System
and are thus useful in ascertaining the classification of
merchandise under the System. Customs believes the ENs should
always be consulted. See T.D. 89-80, published in the Federal
Register August 23, 1989 (54 FR 35127, 35128).
Note 3(a), Chapter 94, HTSUS, provides that:
In headings 9401 and 9403 references to parts of goods do
not include references to sheets or slabs (whether or not
cut to shape but not combined with other parts) of glass
(including mirrors), marble or other stone or of any other
material referred to in chapter 68 or 69.
Additional U.S. Note 1, Chapter 68, HTSUS, provides that:
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 25.82 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.
On the basis of these provisions, the protestant contends
that a table top of granite which does not meet the definition of
"slab" in Additional U.S. Note 1 because the edges have been
beveled, rounded or otherwise processed as described is not
excluded from heading 9403 by Note 3(a), Chapter 94. That is,
the protestant argues that such table tops are not included in
"references to ... slabs ... of ... marble or other stone ...
referred to in chapter 68 ...."
We disagree (see, e.g., ruling HQ 084608 dated August 24,
1989). The only reference to "slabs" in heading 6802 is in
subheading 6802.91.05, in which other marble in the form of
"slabs" is distinguished from other marble in other forms. The
purpose of Additional U.S. Note 1, Chapter 68, is clearly to
distinguish between marble in subheadings 6802.91.05 and
6802.91.15 on the basis of the degree of working or processing to
which the articles have been subjected. See ruling HQ 085410
dated January 4, 1990. The purpose of Note 3(a), Chapter 94, is
to exclude from classification as parts in headings 9401 and 9403
sheets or slabs of any material referred to in Chapter 68 or 69
when the sheets or slabs of material are not combined with other
parts. See EN 94.01 which states:
[T]his Chapter also excludes ... [s]heets of glass
(including mirrors), marble or other stone or of any
material referred to in Chapter 68 or 69, whether or not cut
to shape, unless they are combined with other parts which
clearly identify them as parts of furniture (e.g., a mirror-door for a wardrobe). [Emphasis in original.]
The EN for heading 6802 (EN 68.02) clearly makes the same
exclusion. According to EN 68.02:
Stone slabs forming the tops of articles of furniture
(sideboards, washstands, tables, etc.) Are classified in
Chapter 94 if presented with the pieces of furniture
(whether or not assembled) and clearly intended as parts
thereof, but such furniture tops presented separately remain
in this heading [i.e., heading 68]. [Emphasis in original.]
The interpretation proposed by the protestant would defeat
the purpose of Note 3(a), Chapter 94, for any table top the edges
of which were beveled, rounded, or otherwise processed to a
degree beyond that needed to facilitate installation. Further,
this interpretation ignores the fact that Note 3(a), Chapter 94,
excludes from heading 9403 "sheets or slabs" of the identified
material, not only "slabs." See Random House Dictionary of the
English Language (1973), at 1313, defining "sheet" as, among
other definitions, "a relatively thin, usually rectangular form,
piece, plate, or slab, as of photographic film, glass, metal,
etc." That the restrictive interpretation proposed by the
protestant is incorrect is further supported by EN 94.01, quoted
above, which describes the exclusion from Chapter 94 in Note 3(a)
as applying to "[s]heets of glass ... marble or other stone ..."
(emphasis added). That is, the EN does not even refer to slabs,
making it clear that whether or not the edges of the sheets of
material have been beveled, rounded, or otherwise processed is
irrelevant for purposes of Note 3(a), Chapter 94. Further, EN
68.02, quoted above, very clearly precludes the interpretation
proposed by the protestant.
Classification under heading 9403 of the granite table tops,
not combined with any other part, is precluded by Note 3(a),
Chapter 94 (see also ENs 94.01 and 68.02). The table tops are
classifiable as other granite, in subheading 6802.93.00, HTSUS.
HOLDING:
The granite table tops are classified as other granite in
subheading 6802.93.00, HTSUS (Note 3(a), Chapter 94, HTSUS).
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, 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,
Commercial Rulings Division