CLA-2 OT:RR:CTF:TCM H051483 JER
James P. Sullivan, Esq.
Sullivan & Lynch, P.C.
56 Roland St., Suite 303
Boston, MA 02129-1223
RE: Request for Binding Ruling; Classification; clay roofing tiles
Dear Mr. Sullivan:
This is in response to your letter dated January 6, 2009, on behalf of your client Prime Styles Rooftops, to the National Commodity Specialist Division of United States Customs and Border Protection (“CBP”), in which you requested a binding ruling pertaining to the tariff classification of certain clay roofing tiles under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your request has been forwarded to this office for reply.
FACTS:
The subject merchandise is described as clay roofing tiles manufactured in Malaysia from indigenous clay, in two styles: Pantile, which has a unique wavy S profile; and Marseille, which has a classic profile. Both styles are produced in a number of colors and finishes. The finishes include: glazed, satin, earthly tone and unglazed. Each tile features interlocking securing tabs at the head and side for maximum weather and security protection. According to the submission, the Marseille style tiles measure approximately 420 mm x 260 mm (16.5 inches long, 10.5 inches wide) or a total of 10,920 total centimeters (cm). The Pantile style is 420 mm x 280 mm (16.5 inches long, 11.0 inches wide) or a total area of 11,760 cm. The body or area of each tile measures 1.27 cm (0.5”) thick, and comprises the vast majority of the tile’s spatial dimensions throughout the width and length of each tile. At the edges of each tile is a narrow section that is 4.45 cm thick (1.75”) which forms the grooves or securing tabs for interlocking the tiles together.
ISSUE:
Whether the subject clay roofing tiles are classifiable in subheading 6905.10.00, HTSUS, as roofing tiles, or in subheading 6905.90.00, HTSUS, as other ceramic constructional goods.
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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 2 through 6 may then be applied in order.
GRI 6 provides that 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, mutatis mutandis, to the above rules, on the understanding that only those subheadings at the same level are comparable.
The 2009 HTSUS provisions under consideration are as follows:
6905 Roofing tiles chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods:
6905.10.00 Roofing tiles……
6905.90.00 Other…..
6905.90.0010 Heat insulating…
6905.90.0050 Other……
Additional U.S. Note 3 to Chapter 69 provides in pertinent part, that:
For the purposes of heading 6905, 6907 and 6908, the term “tiles” does not include any article 3.2 cm or more in thickness.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 6905, HTSUS, state in relevant part, that the heading includes:
(1) Roofing tiles (for roofs, for topping walls, etc.). These are usually provided with nibs, holed for nailing, or may be moulded to interlock, and in this respect differ from the tiles of headings 69.07 and 69.08. They may be flat, half cylinders or of special shapes for eaves, ridges, hips or valleys, etc.
* * *
(4) Other ceramic constructional goods, e.g., ventilator grills; clay-lath used as support for plaster-work and formed of wire mesh with fired clay crosses or plates at the intersections, the fired clay forming the major constituent.
In your submission, you contend that the subject clay roofing tiles are precluded from classification under subheading 6905.10.00, HTSUS, by operation of Additional U.S. Note 3 to Chapter 69, HTSUS. Specifically, you argue that the merchandise measures 4.45 cm (1.75”) in thickness at the securing tabs. You state that the securing tabs are integral and essential to the proper installation and functioning of the roofing system. As such, you conclude that the subject clay roofing tiles are beyond the scope of subheading 6905.10.00, HTSUS, because the thickness at the securing tabs exceeds the thickness parameters provided for in Additional U.S. Note 3 to Chapter 69, HTSUS.
Upon physical examination of the subject roofing tiles, we find that the body or spatial area of the tile consistently measures approximately 1.27 cm (0.5”) in thickness. The body of the tiles comprise the bulk of the entire article while the securing tabs are limited only to those areas necessary to facilitate the interlocking of adjacent tiles up or across the slope of the roof. The corrugated ridges (or securing tabs) occur along the head and side of both styles and in the case of the Pantiles, measure approximately 1.75 cm in width. The Pantiles style contains approximately four such ridges which protrude along the edges of the 11,760 cm (16.5” x 10.5”) roofing tile. The Marseille has approximately five of these corrugated ridges some of which measure 1 cm in width while others measure approximately 2 cm in width. In either case, the coverage of the securing tabs in relation to the entire body of the roofing tiles constitutes a relatively small percentage of the tiles’ total dimensions. Specifically, the size of the Pantiles is approximately 11,760 cm (420 mm x 280 mm) while the Marseille measures approximately 10,920 cm (420 mm x 260 mm). As such, instances where the securing tabs measure 4.45 cm (1.75”) in thickness do not equate to a measurement of the roofing tiles’ thickness as a whole. Accordingly, we find that the vast majority of the subject roofing tiles are predominately 1.27 cm in thickness, the dimensions of which are within the criteria set forth in Additional U.S. Note 3 to Chapter 69.
Roofing tiles are provided for eo nomine, by name, in heading 6905, HTSUS. An eo nomine designation is one which describes a commodity by a specific name, usually one well known in commerce. U.S. v. Bruckman, 582 F.2d 622, 65 C.C.P.A. 90, C.A.D. 1211 (1978). Similarly, an eo nomine designation without limitation or a contrary legislative intent, will include all forms of the article. Sabritas, S.A. de C.V. and Frito-Lay, Inc. v. U.S., 998 F. Supp. 1123, 22 Ct. Int’l Trade 59 (1998). The blending of a utilitarian and decorative function, i.e., the securing tabs, does not remove the subject article from the category which describes it eo nomine. See W & J Sloan, Inc. v. U.S., 408 F. Supp. 1392, 76 Cust. Ct. 62, C.D. 4636 (1976) (Which held that utilitarian or decorative features did not change the fundamental nature of the article). While the securing tabs are necessary to facilitate interlocking with adjacent tiles, these securing tabs do not alone carry out the primary purpose of the roofing tiles. According to the ASTM C 1167 standard specifications for clay roof tiles, the purpose of the clay roof tile is to provide a weather-resistant surface which is the accomplished by the design, strength and durability of the tile as a whole. Hence, we do not find the presence or function of the securing tabs to be determinative in an eo nomine designation for roofing tiles.
For example, in New York Ruling Letter (“NY”) 817678, dated January 16, 1996, CBP classified ceramic roof tile under subheading 6905.10.00, HTSUS. The roofing tiles of NY 817678, featured apertures which enabled the tile to be secured to the roof and had a curved shape along one side, which measured 3¾ inches high. In that decision we stated that since the article was constructed as a roofing tile, and was designed to function as a roofing tile, classification under subheading 6905.90.00, HTSUS, was precluded.
Furthermore, the examples provided in EN 69.05 for other ceramic constructional goods under subheading 6905.90.00, HTSUS, include “ventilator grills, clay-lath used as a support for plaster-work and formed of wire mesh with fired clay crosses or plates at the intersection.” The subject roofing tiles do not fit this description. Conversely, the subject roofing tiles meet the description for roofing tiles provided in EN 69.05 which explains that the heading includes “[r]oofing tiles… [which] may be moulded to interlock, and in this respect differ from the tiles of headings 69.07 and 69.08. They may be flat, half cylinder or of special shapes for eaves, ridges, hips or valley, etc.” Hence, the subject roofing tiles are sufficiently described in the ENs to heading 6905, HTSUS.
HOLDING:
By application of GRI 1, the subject roofing tiles are classified in heading 6905, HTSUS. They are specifically classified in subheading 6905.10.00, HTSUS, which provides for: “Roofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods: Roofing tiles….” The 2009 column one, general rate of duty is 13.5 % ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/. A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch