CLA-2 CO:R:C:M 089012 NLP
District Director
909 First Avenue
Room 2039
Seattle, WA 98174
RE: Protest and Request for Further Review No. 3001-90-101313,
November 2, 1990; mixture of crushed rock and sand; Heading
2515; Heading 6815
Dear District Director:
The following is our decision regarding the Protest and
Request for Further Review No. 3001-90-101313, dated November 2,
1990. At issue is the classification of top course.
FACTS:
Top course is a mixture of crushed rock and sand, maximum
5/8 inches in diameter. According to the importer, the crushed
rock and sand were both obtained by crushing rock mined from
glacial deposits that are of a volcanic and granite composition.
Following crushing, the material was screened and sorted into
various sizes. The top course is approximately 25-30 percent
sand and 60-65 percent crushed rock, with the rest of the mixture
consisting of gravel.
Upon entry, the importer classified the top course under
subheading 2517.10.00 HTSUSA, HTSUSA, which provides for crushed
stone. Your office liquidated the top course under subheading
6815.99.40, HTSUSA, which provides for articles of stone or of
other mineral substances, not elsewhere specified or included,
other, other.
The importer contends that the top course is classified eo
nomine under Heading 2517, which provides for, inter alia,
pebbles, gravel, broken or crushed stone, of a kind commonly used
for concrete aggregates, for road metalling, or for railway or
other ballast, shingle and flint, whether or not heat treated.
The importer argues that the top course is wholly comprised of
the same substance, however graded and/or sized, and as such is
not a mixture. Moreover, even if this product was considered a
mixture, subheading 2517.10.00, HTSUSA, still applies since the
essential character of the top course is represented by crushed
rock, not sand.
In addition, the importer argues that "articles" as
described in 6815, HTSUSA, are manufactured into particular
shapes such as blocks, vats, touchstones, paving blocks, filters;
tubes, etc. Since the exemplars listed are much more definite
and concrete than the subject product, the top course should not
be considered an article classifiable in subheading 6815.99.40,
HTSUSA.
ISSUE:
Is the top course classifiable in subheading 6815.99.40,
HTSUSA, as articles of stone or of other mineral substances, not
elsewhere specified or included, other, other.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Heading 2517, HTSUSA, provides for, inter alia, pebbles,
gravel, broken or crushed stone, of a kind commonly used for
concrete aggregates, for road metalling, or for railway or other
ballast, shingle and flint, whether or not heat treated.
Note 1 to Chapter 25 states the following:
1. Except where their context or Note 4 to this Chapter
otherwise requires, the headings of this Chapter
cover only products which are in the crude state or
which have been washed (even with chemical
substances eliminating the impurities without
changing the structure of the product), crushed,
ground, powdered, levigated, sifted, screened,
concentrated by flotation, magnetic separation or
other mechanical or physical processes (except
crystallization), but not products which have been
roasted, calcined, obtained by mixing or subjected
to processing beyond that mentioned in each heading.
(Emphasis added)
The Explanatory Notes to Chapter 25, page 183, state in
pertinent part that "Minerals which have been otherwise processed
(e.g...obtained by mixing minerals falling in the same or
different headings of this Chapter...) generally fall in
later Chapters (for example, Chapter 28 or 68)." (Emphasis in the
original) In addition, the Explanatory Notes to Chapter 68 state
that this chapter covers various products of Chapter 25 worked to
a degree beyond that permitted by Note 1 to Chapter 25.
The crushed rock and the sand, if imported separately, would
be classified in two different subheadings. The crushed rock
would be classified in subheading 2517.10.00, HTSUSA, as crushed
stone. Since the sand is formed from granite, which is a stone
classifiable in Heading 2515, HTSUSA, the sand would be
classified in subheading 2517.49.00, HTSUSA, which provides for
granules and powder of stones of heading 2515 or 2516, other.
Therefore, the crushed rock and stone are two distinct products
which have been artificially mixed to form the top course. As
the language of the above Notes clearly indicate, products which
have been obtained by mixing minerals falling in the same heading
of Chapter 25 are not classifiable in Chapter 25. As a result,
the top course is precluded from classification in Chapter 25.
Heading 6815, HTSUS, does not provide a definition for the
term "articles". Tariff terms are considered in accordance with
their common and commercial meaning, which are presumed to be the
same. Nippon Kogaku (USA) Inc. v. United States, 673 F.2d 380
(1982). To ascertain the common [and commercial] meaning [of a
tariff term], in addition to relying upon its own understanding
of the terms used, the courts may consult dictionaries, lexicons,
the testimony of record, and other reliable sources of
information as an aid to its knowledge. Pistorini & Co., Inc. v.
United States, 461 F. Supp. 331, 332 (1978). In the instant
case, in order to understand the meaning of the word article in
this heading, we have looked to dictionary definitions of the
term.
The term "article" is described as a thing of a certain
kind; a separate item; a thing for sale; a commodity. Webster's
New World Dictionary, Third College Edition (1988). The top
course is a separate item and is a marketable product which is
for sale. It is not necessary for the term "article" in heading
6815, HTSUSA, to be limited to shaped or carved solid objects.
Thus, the top course may be regarded as an article and can be
classified in subheading 6815.99.40, HTSUSA, which provides for
articles of stone or of other mineral substances, not elsewhere
specified or included, other, other.
HOLDING:
The protest should be denied in full. A copy of this
decision should be attached to the Form 19 Notice of Action to be
sent to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division