OT:RR:CTF:TCM H238476 HvB
TARRIF NO. 6806.10.00
Martha Kirby, M.Ed., CCS
Corporate Efficiency Consulting Inc.
P.O. Box 93182
1450 Headon Road
Burlington, ON L7M 4A3
Canada
RE: Reconsideration of NY N226655 and NY N226658; Classification of Agricultural Rock Wool
Dear Ms. Kirby:
This is in response to your submissions, dated November 21, 2012 and June 26, 2014, requesting reconsideration of New York Ruling Letter (“NY”) N226655, dated September 24, 2012, and NY N226658, dated September 25, 2012, regarding the classification of rock wool, under the Harmonized Tariff Schedule of the United States (HTSUS), on behalf of Grodan. This decision also takes into account your emails of March 11 and 16, 2015. We have reviewed NY N226655 and NY N226658, and find them to be correct.
FACTS:
Grodan imports rock wool in bulk that is ultimately used as a growing medium for plants in commercial greenhouses and in hydrophonic growing systems. According to your June 26 submission, agricultural rock wool is suitable for such in that it retains nutrients until they are absorbed by water. The subject rock wool is manufactured by melting basaltic rock and spinning the melted basalt into fibers. The fibers are then coated with a wetting agent, compressed, cured, and cut into large rectangular shapes of rock wool. The rock wool shapes are then wrapped in plastic.
The rock wool is described and marketed under the following names: Grotop Expert, Grotop Master, Vital and Classic Slab. The merchandise is typically sold 12 rectangles per pack. The rock wool rectangles are imported in the following dimensions:
Rock wool Sample
Dimensions in inches
Grotop Master
8 x 2.75 x 40 and
5 x 4 x 48
Classic Slab
5 x 3 x 40 and 12 x 3 x 36 and
6 x 2.75 x 36
Grotop Expert
6 x 2.75 x 36
Grodan Vital
8 x 2.75 x 36
Laboratory analysis confirms that the subject merchandise is rock wool. CBP Laboratory and Scientific Services issued Reports # NY20121416 and # NY20121616, dated August 30, 2012, which both state that “The sample is two long rectangles of yellow fibrous material… In the opinion of the laboratory, both samples are a rock or mineral wool.”
ISSUES:
Whether the merchandise is classified in heading 6806, HTSUS, as “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 mineral materials, other than those other than those of heading 6811 or 6812, or of chapter 69” or, whether it is classified as a part under headinig 8436, HTSUS, which provides for “Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders[.]”
If classified in heading 6806, HTSUS, whether the merchandise is classified in subheading 6806.10, HTSUS, as “sheets.” or in subheading 6806.90, HTSUS, which provides for “Slag wool, rock wool and similar mineral wools[:] …: Other”.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.
The 2015 HTSUS provisions under consideration are the following:
6806 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 mineral materials, other than those of heading 6811 or 6812, or of chapter 69:
6806.10 Slag wool, rock wool and similar mineral wools (including intermixtures thereof), in bulk, sheets or rolls:
***
6806.90 Other . . . .
8436 Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof:
***
Parts:
***
8436.99 Other:
The Notes to Chapter 84 provide in pertinent part:
This chapter does not cover:
Millstones, grindstones or other articles of chapter 68[.]
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 68.06 states, in pertinent part, the following:
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.
…
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.
The mixtures and articles classified here may contain a small quantity of asbestos fibres, in particular to facilitate use. The proportion of asbestos added is generally not more than 5 % by weight. The heading excludes articles of asbestos-cement (heading 68.11) and mixtures with a basis of asbestos or of asbestos and magnesium carbonate (and articles thereof) (heading 68.12).
* * * * *
The subject merchandise consists of yellow fibrous slabs of mineral rock wool that is in rectangular form. CBP Laboratory analysis confirmed that the merchandise consisted of rock wool. In your supplemental submission of June 26, 2014, you assert that the rock wool is classifiable in the alternative under heading 8436, HTSUS, which provides for “Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof.” However, this classification is precluded by the Notes to Chapter 84. Specifically, Legal Note 1 to Chapter 84, which includes heading 8436, excludes “other articles of Chapter 68.” Accordingly, the subject merchandise is excluded from classification in heading 8436, HTSUS, because it is described by the terms of heading 6806, HTSUS, as rock wool.
Thus, our analysis turns to the 6-digit level of the HTSUS, which implicates an analysis pursuant to GRI 6. GRI 6 states:
For legal purposes, the classification of goods in the subheading 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 subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter, and subchapter notes also apply, unless the context otherwise requires.
At issue is whether the subject rock wool meets the definition of “Slag wool, rock wool and similar mineral wools…: in bulk, sheets or rolls” as provided under subheading 6806.10, HTSUS. If it does not meet those descriptors, it is classifiable in the basket provision under subheading 6806.90, HTSUS, as “Slag wool, rock wool and similar mineral wools: Other.”
“When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common or commercial meaning. See Rocknell Fastener, Inc. v. United States, 267 F.3d 1354 (Fed. Cir. 2001). “To ascertain the common meaning of a term, a court may consult ‘dictionaries, scientific authorities, and other reliable information sources and ‘lexicographic and other materials’.” Id (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The online Merriam-Webster Dictionary defines “sheet” as a “portion of something that is thin in comparison to its length and breadth.” The subject merchandise consists of pieces of rock wool that are relatively thin in comparison to their other dimensions. The rock wool pieces are no thicker than 3 inches but have lengths from 5 to 8 inches and widths that range from 36 inches to 40 inches. Accordingly, we find that the subject rock wool meets the definition of “sheets”.
In your November 21, 2012 submission, you contend that the subject rock wool cannot be classified in subheading 6806.10, because it is in the form of “slabs,” which you argue is not synonymous with “sheets.” In further support of the argument that Grodan’s rock wool slabs are not sheets, you cite Additional U.S. Note 1 to Chapter 68, which states:
For the purposes of heading 6802, the term "slabs" embraces flat stone pieces, not over 5.1 cm in thickness, having a facial area of 25.8 cm2 or more, the edges of which have not been beveled, rounded or otherwise processed except such processing as may be needed to facilitate installation as tiling or veneering in building construction.
You also note the following language under EN 68.06: “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.”
In response, we note the definition of the term “slabs” is not at issue here. Rather, the issue is whether the merchandise can be classified as “sheets” of rock wool. As discussed above, the merchandise is wider and larger than it is tall and therefore meets the definition of the term “sheet”. Thus, it cannot be classified in subheading 6806.90, HTSUS, as rock wool in a form other than sheets. Also, Additional U.S. Note 1 to Chapter 68 explicitly does not apply to heading 6806. Nor does the EN to heading 6806 state otherwise. Rather, it speaks only to what the heading includes with regard to examples of rock wool. It does not direct any particular subheading classification for any particular form or shape. Nor is the list of shapes exhaustive as demonstrated by the term “e.g” (for example). Lastly, and most importantly, CBP has held, absent express language, that the Explanatory Notes cannot be used to limit the scope of heading. See, e.g., Headquarters Ruling Letter (HQ) H031587, dated April 1, 2011. See also Streetsurfing LLC v. United States, 11 F. Supp. 3d 1287, 1300 (Ct. Int'l Trade 2014).
Lastly, you cite to HQ H146056, dated January 2, 2013, in which we classified a thermal insulation blanket used in gas turbine engines to protect the rear turbine support hub from excessive heat produced by the turbine. We classified the thermal blanket in subheading 6806.90, HTSUS, the provision you argue describes the subject merchandise. In HQ H146056, the thermal insulation blanket consisted of mineral wool pads encapsulated in one inch textile squares that were covered with an outer cladding of stainless steel. It had an outside diameter of 24.6 centimeters (or 9.68 inches), an inside diameter of 23.1 cm (or 9.09 inches), and a length of 5.0 cm (or 1.96 inches). In classifying the thermal insulation blanket in subheading 6806.90, we noted that it was in shape of a ring with a large hole in the middle and thus did not meet the dictionary definition of “sheet”, observing that “whereas a ring is a circular object, form, line or arrangement with a vacant circular center.” Ibid. The subject rock wool is not in the form of a ring and thus HQ H146056 is not applicable to the subject merchandise.
The subject merchandise is classified in subheading 6806.10, HTSUS, as sheets of rock wool, by application of GRI 1. This is consistent with previous CBP decisions in which we classified similar merchandise. See NY K81954, dated January 7, 2004, and NY J85692, dated July 3, 2003.
HOLDING:
The instant merchandise, GroTop Master, Classic Slab, Vital and GroTop Expert are classified in heading 6806, HTSUS, specifically in 6806.10.00, HTSUS, as “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 mineral materials, other than those other than those of heading 6811 or 6812, or of chapter 69: Slag wool, rock wool, and similar mineral wools (including intermixtures thereof), in bulk, sheets or rolls” by application of GRI 1. The column one general rate of duty is 3.9 percent ad valorem.
Duty rates are provided for your convenience 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.
EFFECT ON OTHER RULINGS:
NY N226655, dated September 24, 2012, and NY N226658, dated September 25, 2012, are hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division