CLA-2 RR:CR:GC 965778 AML
Port Director
U.S. Customs Service
35 West Service Road
Champlain, NY 12919
Re: Protest 0712-02-100025; stone mosaic borders
Dear Port Director:
The following is our decision regarding protest 0712-02-100025, filed by a customs broker on behalf of Mosaique Surface, Inc., against your classification of stone mosaic borders under subheading 6802.92.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Subheading 6802.92.00, HTSUS, provides for worked monumental or building stone . . . mosaic cubes and the like . . . other calcareous stone. A sample, catalog and descriptive literature were provided for our consideration.
FACTS:
The articles at issue are stone mosaic borders of various designs. The protestant describes the articles as multi-colored mosaic borders made of marble, backed with a textile mesh. The articles are used for indoor decoration.
The protestant states that it employs a number of “recognized” artists on its staff and that these artists assemble the articles entirely by hand.
The articles were entered in December 2001, and the entry was liquidated on February 15, 2002. The protest was filed on February 20, 2002. The products were classified at liquidation under subheading 6802.92.00, HTSUS.
ISSUE:
Whether the stone mosaic borders are classifiable under heading
6802, HTSUS, which provides for, among other things, mosaic cubes and the like, of natural stone . . . the largest surface area of which is capable of being enclosed in a square the size of which is less than seven centimeters, or under heading 9701, HTSUS, which provides for, among other things, works of art executed entirely by hand?
LAW and ANALYSIS:
Initially we note that the protest was timely filed and the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (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[.]”
The HTSUS provisions under consideration are as follows:
6802 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):
6802.10.00 Tiles, cubes and similar articles, whether or not rectangular (including square), the largest surface area of which is capable of being enclosed in a square the side of which is less than 7 cm; artificially colored granules, chippings and powder:
Other monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface:
6802.92.00 Other calcareous stone.
* * *
9701 Paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand-painted or hand-decorated manufactured articles; collages and similar decorative plaques; all the foregoing framed or not framed:
9701.90.00 Other.
Because they are handmade by artisans, the protestant alleges that the articles are classifiable under heading 9701, HTSUS, which provides for works of art executed entirely by hand.
The Harmonized Commodity Description and Coding System Explanatory Notes (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. Customs believes the ENs should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
The General ENs to Chapter 97 provide, in pertinent part, as follows:
This Chapter covers:
(A) Certain works of art: paintings, drawings and pastels, executed entirely by hand, and collages and similar decorative plaques (heading 97.01); original engravings, prints and lithographs (heading 97.02); original sculptures and statuary (heading 97.03).
* * *
It should, however, be noted that such articles are classified in other Chapters of the Nomenclature if they do not comply with the conditions arising from the terms of the Notes or headings of this Chapter.
The ENs to heading 9701, HTSUS, provide, in pertinent part, as follows:
(B) COLLAGES AND SIMILAR DECORATIVE PLAQUES
This group covers collages and similar decorative plaques, consisting of bits and pieces of various animal, vegetable or other materials, assembled so as to form a picture or decorative design or motif and glued or otherwise mounted on a backing, e.g., of wood, paper or textile material. The backing may be plain or it may be hand-painted or imprinted with decorative or pictorial elements which form part of the overall design. Collages range in quality from articles cheaply produced in quantity for sale as souvenirs up to products which require a high degree of craftsmanship and which may be genuine works of art.
The protestant relies on several prior rulings in support of its contention that the subject articles are classifiable under heading 9701, HTSUS: Port Decision (PD) E81195, dated May 17,1999; New York Ruling Letter (NY) 811127, dated June 21, 1995; NY A82907, dated May 15, 1996. We have reviewed the controlling facts and conclusions reached in the rulings cited and conclude that they are distinguishable from the articles in question. In PD E81195, stone and glass mosaic collages were classified under heading 9701, HTSUS. Those mosaics depicted a person and a “colorful basket of flowers” and were designed to hang on the wall. In NY 811127, mosaic floor medallions designed to be permanently integrated into the floor of an airport were classified under heading 9812, HTSUS. In NY A82907, glass mosaic tiles were classified under heading 7016, HTSUS, which provides for glass cubes and other glass smallwares, whether or not on a backing for mosaics or similar decorative purposes.
The articles at issue are substantially similar to prearranged tiles or decorative
inserts sold in hardware and do-it-yourself stores. Such articles are affixed during construction and grouted or otherwise sealed with the tiles or other wall covering. As such, while clearly decorative in appearance, they do not rise to the level of works of art. Therefore, although the articles are assembled entirely by artisans’ hands and fulfill a decorative function, we conclude that the articles are more aptly described as building stones.
The ENs to heading 6802, HTSUS, provide, in pertinent part, as follows:
The heading thus covers stone in the forms produced by the stonemason, sculptor, etc., viz.:
(A) Roughly sawn blanks; also non-rectangular sheets (one or more faces triangular, hexagonal, trapezoidal, circular, etc.).
(B) Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a “rock faced” finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc.
* * *
The heading also covers small prepared mosaic cubes and the like of marble, etc., for various floor or wall coverings, etc., whether or not backed with paper or other materials. It further includes artificially coloured granules, chippings and powder of marble or of other natural stones (including slate) (e.g., for shop window displays), but untreated pebbles, granules, chippings and coloured natural sands fall in Chapter 25.
* * *
The heading therefore includes not only constructional stone (including facing slabs) worked as above, but also . . . other ornamental goods essentially of stone are, in general, classified in this heading.
* * *
The heading also covers small prepared mosaic cubes and the like of marble, etc., for various floor or wall coverings, etc., whether or not backed with paper or other materials [bold emphasis added].
We believe that, in their condition as imported, the stone mosaic borders are intended to be incorporated into a building for its decorative effect. The EN to heading 6802, HTSUS, provides that such articles, comprised of stone and affixed to a backing, although decorative and produced by the sculptor or artisan, are classifiable at the superior heading level as mosaic cubes and the like. Therefore, the merchandise at
issue should be classified under subheading 6802.10, HTSUS, which provides for, among other things, mosaic cubes and the like, of natural stone . . . the largest surface area of which is capable of being enclosed in a square the size of which is less than
seven centimeters. See Headquarters Ruling Letter 087265, dated July 19, 1990, for a similar determination.
HOLDING:
The stone mosaic borders are classifiable under subheading 6802.10.00, HTSUS, which provides for 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: tiles, cubes and similar articles, whether or not rectangular (including square), the largest surface area of which is capable of being enclosed in a square the side of which is less than 7 cm; artificially colored granules, chippings and powder.
The protest is DENIED, except to the extent that the reclassification as indicated above results in a refund of duties paid. 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 Customs Form 19, should be mailed by your office to the protestant no later than sixty (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 this decision.
Sixty (60) days from the date of this 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, the World Wide Web at www.customs.treas.gov, and other public access channels.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division