CLA-2 RR:CR:GC 965475 DBS
Port Director
U.S. Customs Service
423 Canal Street
New Orleans, LA 70130
RE: Protest 2002-01-101199; acoustical ceiling tiles
Dear Port Director:
This is our decision on Protest 2002-01-101199 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of acoustical ceiling tiles. The entries were liquidated on June 29, 2001, and the protest was timely filed on September 27, 2001. By letter of February 27, 2002, this office granted the protestant’s request to set aside your denial of its application for further review and the denial of the protest under the authority of 19 U.S.C. 1515(c).
FACTS:
The instant protest concerns several models of ceiling tiles. The protestant submitted the content of each of the products. Samples were also submitted. The “MARS ClimaPlus” consists largely of a mixture of stone and slag wool, combined with clay, expanded perlite, starch and latex. The product has a Noise Reduction Coefficient (NRC) that, as stated in the product literature, “meets general office acoustical needs.” The “OLYMPIA MICRO ClimaPlus” is a mixture of the same materials as the “MARS ClimaPlus.” Each model has varying dimensions and edge profiles designed to fit grid systems also made by the protestant. Each model is painted white on most sides. The backside of the sample of the “MARS ClimaPlus” is a sand color.
You entered these models in subheading 6806.10.00,
HTSUS, as rock wool, slag wool or mineral wool. The protestant claims
these models are articles of insulating materials, classifiable in subheading 6806.90.00, HTSUS, the basket provision for heading 6806, HTSUS. The Customs Laboratory analyzed a sample (Lab Report # NO20000514) of one of the models and described the sample as follows:
“[A] piece of fiberous material measuring 11.5 inches X 11.5 inches X 1 inch. One side appears to have been sprayed with a white material to seal the fibers and create a “finished” outer layer. The fiberous material has the characteristics [sic] mineral wool other than glass. In our opinion, the sample could be used as a ceiling tile.”
The “MARS ClimPlus High NRC” and the “MARS ClimaPlus High NRC foil-backed” are made from fiberglass basemat and binder material. Protestant disclosed that these were initially entered incorrectly and now claims they are classified in subheading 7019.90.50, HTSUS. You have stated that you do not object to this classification.
ISSUE:
Whether the instant acoustical ceiling tiles composed in part of mineral wool is classifiable in subheading 6806.10.00, HTSUS, as mineral wool, or subheading 6806.90.00, HTSUS, as other insulating articles.
LAW AND ANALYSIS:
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.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound-absorbing materials, other than those of heading 6811 or 6812 or chapter 69:
Slag wool, rock wool and similar mineral wools (including intermixtures thereof), in bulk, sheets or rolls
* * *
6806.90.00 Other
* * *
7019 Glass fibers (including glass wool) and articles thereof (for
example, yarn, woven fabrics):
7019.90 Other:
7019.90.50 Other
We will first address the “MARS ClimaPlus” and the “OLYMIPIA MICRO ClimaPlus.” As the appropriate heading is not at issue, we turn first to GRI 6. GRI 6 provides:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheading and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings a the same level are comparable. For the purposes of this rules, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
In the event that merchandise is not found to be classifiable under a specific subheading, it is then classified as "other." The "other," or "basket," provision of a subheading should be used only if there is no tariff category that more specifically covers the merchandise. See DMV USA v. United States, SLIP OP. 2001-99, 9 (C.I.T. August 10, 2001); citing Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247, 1251 (C.I.T. 2000); see also GRI 3(a) ("The heading which provides the most specific description shall be preferred to headings providing a more general description.").
As there are no relative section or chapter notes applicable here, we look to the ENs for guidance. EN 68.06 describes, in pertinent part:
Slag wool and rock wool (e.g., of granite, basalt, limestone or dolomite) are obtained by melting one or more of these constituents and converting a stream of the resulting liquid into fibres, usually by centrifugal action and stream or air blast.
This heading also includes a class of “alumino-silicates” known as “ceramic fibres.” They are formed by fusing a blend of alumina and silica, in varying proportions, sometimes with the addition of small amounts of other oxides such as zirconia, chromia or boric oxide, and by blowing or extruding the melt into a mass of fibres.
The mineral wools of this heading, like the glass wool of heading 70.19, have a flocculent or fibrous appearance. They differ from the latter by their chemical composition (see Note 4 to Chapter 70), while their fibres are generally shorter and not as white in colour.
…
Subject to the tolerances concerning the asbestos content (referred to below), this heading also covers heat-insulating, sound-insulating or sound-absorbing mixtures of mineral materials in bulk, e.g., mixtures composed essentially of kieselguhr, siliceous fossil meals, magnesium carbonate, etc., often with added plaster, slag, powdered cork, sawdust or wood shavings, textile fibres, etc. The mineral wools described above may also form part of such mixtures which, in the mass, are used as packing materials, in the insulation of ceilings, roofs, walls, etc.
The heading includes articles, usually of low density, made from the above products or mixtures (e.g., blocks, sheets, bricks, tiles, tubes, cylinder shells, cords, pads). These articles may be artificially coloured in the mass, impregnated with fireproof substances, faced with paper, or reinforced with metal.
Subheading 6806.10.00 provides for slag wool, rock wool, similar mineral wools, and intermixtures thereof, in bulk, sheets and rolls. Based on the rule of construction, noscitur a socii, whereby the meaning of a word may be ascertained by the meaning of the words associated with it, “intermixtures thereof” means mixtures of slag wool, rock wool and similar mineral wools. See Ruth F. Sturm, Customs Law and Administration, 3d edition, §51 Rules of Construction, 51.
You cited NY 858466, dated December 17, 1990, and NY 856631, dated October 11, 1990, to support classification of the “MARS ClimaPlus” and the “OLYMPIA MICRO ClimaPlus” in subheading 6806.10.00, HTSUS. The product at issue in the first ruling was composed of a mixture of silicon oxide and aluminum oxide. The latter product was composed of a mixture of silicon oxide, aluminum calcium oxide and magnesium oxide. Both products were mixtures described in EN 68.06 as “ceramic fibres.” The ENs discuss “ceramic fibres” following a description of how slag wool and rock wool are made, and before a description of mineral wools (cited above). “Ceramic fibres” are mineral in nature, and thus meet the terms of the first part of the heading text. They are in wool form, and are therefore provided for in subheading 6806.10.00, HTSUS.
The EN descriptions of heat-insulating, sound-insulating or sound-absorbing mixtures of mineral materials, and articles made from them, describe the scope of the terms of the third part of heading 6806. In particular, it states that “mineral wools described above may also form part of such mixtures which, in the mass, are used as packing materials, in the insulation of ceilings, roofs, walls, etc,” and articles included in the heading “may be…impregnated with fireproof substances….” Products described as such are mixtures of materials in various forms; therefore, the basket provision provides for these products because they are not more specifically provided for in the other subheadings.
For example, in NY 855832, dated November 1, 1990, Customs classified, among others, a product consisting of rock wool in bulk, fireproof material mixture, plastic based liquid binding and water in subheading 6806.90.00, HTSUS, the basket provision for the heading. The product, used to coat cables for fire resistance, contained a mixture of mineral materials and was a finished product. Thus, according to GRI 6, such articles are described in subheading 6806.90.00, HTSUS.
Similarly, the “MARS ClimaPlus” and the “OLYMPIA MICRO ClimaPlus” are mixtures of minerals wools plus expanded perlite and clay (provided for in subheading 6806.20.00, HTSUS) starch and latex. They, too, are finished products, ceiling tiles with noise reduction coefficients, that are painted and have stepped edge profiles for installation with grids to form the ceiling of a room. The mineral wool in the product “form[s] part of such mixtures which, in the mass, are used…in the insulation of ceilings….” The products are “articles, usually of low density, made from the above products or mixtures (e.g., blocks, sheets, bricks, tiles, tubes, cylinder shells, cords, pads).” Emphasis added.
As evidenced by the above-mentioned rulings, mixtures of subheading 6806.10.00, HTSUS, are almost purely mixtures of those materials individually classifiable in that subheading and are in mineral wool form. Mixtures consisting of mineral wools combined with other materials exceed the scope of the subheading 6806.10.00, HTSUS, and are classifiable in subheading 6806.90.00, HTSUS.
We find the “MARS ClimaPlus” and the “OLYMPIA MICRO ClimaPlus” to be in the latter group, and thus not classifiable in the specific provision for slag wool, rock wool and similar mineral wools. According to GRI 1, applied mutatis mutandis through GRI 6, these two products are classifiable in the basket subheading 6806.90.00, HTSUS.
As stated in the FACTS section, the classification of the fiberglass-based tiles are not in dispute. Those products are classifiable in subheading 7019.90.50, HTSUS, as other glass fibers and articles thereof.
HOLDING:
The “MARS ClimaPlus” and the “OLYMPIA MICRO ClimaPlus” are classifiable in subheading 6806.90.00, HTSUS, which provides for “Slag wool, rock wool and similar mineral wools; exfoliated vermiculite, expanded clays, foamed slag and similar expanded mineral materials; mixtures and articles of heat-insulating, sound-insulating or sound-absorbing materials, other than those of heading 6811 or 6812 or chapter 69: other.”
The “MARS ClimPlus High NRC” and the “MARS ClimaPlus High NRC foil-backed” are classifiable in subheading 7019.90.50, HTSUS, which provides for “Glass fibers (including glass wool) and articles thereof (for
example, yarn, woven fabrics): other: other.”
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 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