CLA-2 RR:CR:GC 965251 AML
Port Director
U.S. Customs Service
1717 East Loop
Houston, TX 77029
RE: Protest 5301-01-100224; Silestone™ agglomerated stone slabs
Dear Port Director:
The following is our decision regarding Protest 5301-01-100224, dated August 10, 2001, filed by counsel on behalf of Tacom Corporation d.b.a. Cosentino U.S.A., against your classification of Silestone™ agglomerated stone slabs under the Harmonized Tariff Schedule of the United States (HTSUS). Technical literature and photographs were provided for our consideration.
FACTS:
The articles at issue are Silestone™ agglomerated stone slabs. The protestant, through counsel, describes the articles as follows:
In their condition as imported, the articles are 52 inch by 120 inch and 55 inch by 120 inch (approximately 4 feet by 10 feet) slabs of agglomerated stone that are 2 to 3 centimeters (cm) (approximately 1 inch) in thickness and weigh approximately 700 pounds. The slabs are manufactured using a patented technology and is marketed under the Silestone™ name. The slabs are composed of 93% quartz and 7% resin binder. After the slabs are imported, they are sold only to U.S. distributors who use them to produce various counter tops, vanities and fireplace surrounds.
The protestant states that it also imports Silestone™ tiles of various sizes (12 inches by 12 inches, 16 inches by 16 inches, 24 inches by 24 inches, 24 inches by 12 inches, and 24 inches by 16 inches), all with a thickness of 1.2
cm (approximately 1/2 of an inch). The protestant concedes that these tiles are classifiable under subheading 6810.19.12, HTSUS.
The articles were entered in April, May, and June, 2000, and the entries were liquidated or re-liquidated in May, June and July, 2001, with classification under subheading 6810.19.50, HTSUS, which provides for articles of...artificial stone...tiles, flagstones, bricks and similar articles: other: other. The protest was filed on August 10, 2001.
ISSUE:
Whether the agglomerated stone slabs at issue are classifiable as articles of cement, of concrete or of artificial stone, whether or not reinforced: tiles, flagstones, bricks and similar articles: other: floor and wall tiles: of stone agglomerated with binders other than cement: under subheading 6810.19.50, HTSUS, or as other articles of artificial stone under subheading 6810.99.00, 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 is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable.
The HTSUS provisions under consideration are as follows:
6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced:
Tiles, flagstones, bricks and similar articles:
6810.19 Other:
Floor and wall tiles:
6810.19.12 Of stone agglomerated with binders other than cement:
6810.19.50 Other.
Other articles:
6810.99.00 Other.
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).
Counsel claims that the agglomerated stone slabs are classifiable in Chapter 68, which provides for, inter alia, stone, plaster, cement, asbestos, mica or similar materials. The General ENs to Chapter 68 provide, in pertinent part, as follows:
Some of the goods [included in Chapter 68] may be agglomerated by means of binders, contain fillers, be reinforced, or in the case of products such as abrasives or mica be put up on a backing or support of textile material, paper, paperboard or other materials.
Most of these products and finished articles are obtained by operations (e.g., shaping, moulding), which alter the form rather than the nature of the constituent material. Some are obtained by agglomeration (e.g., articles of asphalt, or certain goods such as grinding wheels which are agglomerated by vitrification of the binding material); others may have been hardened in autoclaves (sand-lime bricks). The Chapter also includes certain goods obtained by processes involving a more radical transformation of the original raw material (e.g., fusion to produce slag wool, fused basalt, etc.).
Within Chapter 68, heading 6810, HTSUS, provides for, among other things, articles of artificial stone. Additional U.S. Note 2 to Chapter 68, HTSUS, states that “for the purposes of heading 6810, the term "tiles" does not include any article 3.2 cm or more in thickness.”
The ENs to heading 6810 provide, in pertinent part, as follows:
Artificial stone is an imitation of natural stone obtained by agglomerating
pieces of natural stone or crushed or powdered natural stone (limestone, marble, granite, porphyry, serpentine, etc.) with lime or cement or other binders (e.g., plastics). Articles of artificial stone include those of “terrazzo”, “granito”, etc.
The protestant alleges that the articles in question are raw materials that will be further worked following importation classifiable as other articles of artificial stone. Therefore, in accordance with GRI 6 above, we must determine whether the articles are similar to tiles, flagstones and bricks, classifiable in the first subprovision of heading 6810, HTSUS, or as other articles in the basket provision at the same level.
The articles, upon importation, have a thickness of 2 or 3 cm, less than the 3.2 cm limit to the thickness of tiles as defined under Additional U.S. Note 2.
In Headquarters Ruling Letter 084608, dated August 24, 1989, in determining the classification of, among other things, agglomerated stone counter tops, we consulted various sources concerning the meaning of the terms “tiles” and “flagstones”. (A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). See also C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982) and Hasbro Industries, Inc. v. U.S., 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989)) We concluded in HQ 084608 that counter tops and channel systems made of agglomerated, artificial stone were classified under subheading 6810.99.00, HTSUS, as articles of cement, of concrete or of artificial stone, whether or not reinforced, other articles, other.
In HQ 085410, dated January 4, 1990, we addressed the Additional U.S. Notes to Chapter 68 vis-à-vis the size criteria for tiles and slabs in headings 6802 and 6810, HTSUS. We declined to adopt an absolute standard regarding the dimensions of such articles, in essence deciding to classify such articles on a case-by-case basis. We stated in this regard as follows:
[W]e agree that the terms of Chapter 68, and indeed the entire tariff schedule, must be considered in pari materia, and that all the terms of the schedule must have meaning. However, we are of the opinion that the Additional U.S. Notes apply only to the tariff heading to which the notes, by their
terms, refer. Despite your contention to the contrary, the drafters of the HTSUSA clearly manifested their intent to restrict the definitions of the terms "slab" and "tile" by referring to a specific heading in each note. It is our opinion
that a rigid, uniform application of a "tile" or "slab" definition throughout the chapter was not, and is not, contemplated by the Nomenclature.
* * *
[W]e are of the opinion that the term "tiles" does not encompass articles which are so large that they cannot rationally be considered "tiles". It was in this light that we compared the large building components to the "slabs" of heading 6802, and found them to be ejusdem generis. We did not, as your letter suggests, purport to make the concept of "slabs" in heading 6802, HTSUSA, "applicable with equal force to the classification of 'artificial stone' articles
in HTS 6810". Our intent was simply to illustrate that larger articles are contemplated by the Nomenclature. In terms of heading 6810, those types of articles are properly classified as items "other" than tiles.
* * *
We did not, nor do we now, intend to specify precise dimensions or surface areas which will define "tiles" and "other" articles for the purposes of
heading 6810, HTSUSA, other than those found in the relevant Legal Notes. In our opinion, the principal use of the term "tile(s)" in the stone or similar industries, is in reference to products having sides which measure up to 18 inches. Again, we are not prescribing absolute limits or dimensions in this regard. However, given these general guidelines, it is clear that articles such as the small building components addressed in your original request would be
considered a "tile" in the stone trade, and they are classified as such.
We note that the Court of International Trade (in Blakley Corp. v. United States, 22 CIT 635, 15 F. Supp. 2d 865 (CIT 1998)) considered the definition of the terms “tile” and "slab" in Additional U.S. Note 1 of Chapter 68, and, in reaching the same conclusion regarding the Additional U.S. Note, gave imprimatur to the conclusions made in HQ 085410.
The protestant states that the instant merchandise will be further worked following importation into various kitchen counter tops, vanities and fireplace surrounds. The articles at issue are of substantial size and weight, approximately 4 feet by 10 feet and weigh approximately 700 lbs. We conclude that they cannot, in their condition as imported, be construed to be tile, flagstone or brick or similar articles. The terms tile, flagstone or brick connote articles that can easily be manipulated by hand and arranged, fixed or set in place to collectively comprise a floor, ceiling, wall, pavement or structure. The articles at issue are unwieldy and cannot be likened to the articles contemplated within subheading 6810.19.50, HTSUS.
We liken the slabs of agglomerated stone to goods presented in material lengths that must be further worked prior to installation. In such instances, there is no recognizable article and the material length is precluded from classification as a part, even though the material may be dedicated for making the individual articles. Avins Industrial Products Co. v. United States, 515 F.2d 782 (CCPA 1975). In HQ 955346, dated February 9, 1994, which concerned the classification of coils of stainless steel curved wire designed for the manufacture of piston rings for automobile engines, we stated that:
[u]nder a longstanding Customs principle, goods which are material when entered are not classifiable as a particular article unfinished. See Sandvik Steel,
Inc. v. U.S., 321 F.Supp. 1031, 66 Cust. Ct. 12, C.D. 4161 (1971) (shoe die knife steel in coils and cutting rules in lengths, without demarcations for cutting or bending, held to be material rather than unfinished knives or cutting blades); The Harding Co. v. U.S., 23 Cust. Ct. 250 (1936) (rolls of brake lining held to be material because the identity of the brake lining was not fixed with certainty); Naftone, Inc. v. U.S., 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of plastic film without demarcations for cutting despite having only one use held to be insulating material). See also HQ 952938, dated August 4, 1993, and HQ
084610, dated May 17, 1990.
Therefore, at GRI 6, the instant slabs of agglomerated stone are considered to be goods imported in material form. They are not similar to tiles, flagstones or bricks, but rather are other articles of artificial stone.
HOLDING:
Under the authority of GRI 6, the agglomerated quartz sheets are classified under subheading 6810.99.00, HTSUS, which provides for other articles of artificial stone.
The protest should be GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division