CLA-2 OT:RR:CTF:TCM H239871 MG
Mr. Bruce N. Shulman
Stein Shostak Pollack & O’Hara, LLP
1776 K Street N.W.
Suite 2213
Washington, D.C. 20006
RE: Reconsideration of New York Ruling Letter N234655, dated January 28, 2013; Classification of stoneware ceramic slabs from Spain
Dear Mr. Shulman:
This is in response to a request for reconsideration, dated March 15, 2013, made on behalf of Cosentino North America (“Cosentino”) of New York (“NY”) ruling letter N234655, issued to Cosentino by U.S. Customs and Border Protection (“CBP”) on January 28, 2013.
The issues addressed by this reconsideration ruling originated in a request for a ruling made by Cosentino on October 12, 2012 and supplemental submission, dated November 12, 2012, pertaining to the tariff classification of stoneware ceramic slabs from Spain. The resulting ruling NY N234655 classified the merchandise referred to as DEKTON ® slabs (“DEKTON”), under subheading 6914.90.8000, of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Other ceramic articles: Other: Other.”
You assert that the classification of the subject ceramic slabs was in error and that the correct tariff classification is subheading 6905.90.00, HTSUS, which provides for “Roofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods: Other.” A teleconference was held with counsel on May 16, 2013. Supplemental submissions, dated May 17, 2013 and September 16, 2013, were also received and a cut, tile-sized sample of the product was provided to this office.
FACTS:
The merchandise is described as a stoneware ceramic product that will be imported in the form of slabs 3200 mm (approximately 10.5 feet) long, 1400 mm (approximately 4.7 feet) wide and between 7 and 35 mm (approximately .27 to 1.37 inches) thick. The merchandise is not used in its imported condition, as it is imported as a slab. So, after importation, these slabs must be further worked prior to installation (cut to size or shape and edge-routed) by professionals dealing in stone and artificial surfacing products. The slabs are cut to size or shape and edge-routed to produce countertops for kitchens and bathrooms, vanities, flooring, wall facings, and furniture components such as dinette and dining room tables.
In its initial ruling request submitted to the NCSD, dated October 12, 2012, the importer provided seven tile-sized samples of the merchandise. These samples were sent to the CBP Laboratories and Scientific Services for testing to determine their material composition. The CBP lab results confirmed that the slabs are made of ceramic stoneware.
ISSUE:
Whether the stoneware ceramic slabs are classified in heading 6905, HTSUS, as other ceramic constructional goods, or in heading 6914, HTSUS, as other ceramic articles?
LAW AND ANALYSIS:
Classification of goods 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 heading 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied 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, and any related subheading notes, and mutatis mutandis to the GRIs 1 through 5.
The HTSUS provisions under consideration in this case are as follows:
6905 Roofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods:
6914 Other ceramic articles:
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS). While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level and are generally indicative of the proper interpretation of the HTSUS headings. It is Customs and Border Protection (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs for heading 6905, HTSUS, state as follows:
Roofing tiles, chimney-pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods.
6905.10 - Roofing tiles
6905.90 - Other
This heading covers a range of non-refractory goods, usually of common pottery but sometimes more or less vitrified, which, like bricks, are used in constructional or building work.
It 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.
(2) Chimney-pots, cowls, chimney liners, flue-blocks, etc.
(3) Architectural ornaments for use on buildings, walls, gates, etc. (e.g., cornices and friezes); gargoyles; pediments, rosettes, balustrades, corbels, capitals; gable-end, eave, ridging and roof ornaments, 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.
These articles fall in this heading whether plain, sand-faced, covered with slip, coloured in the mass, impregnated with other substances, glazed, ribbed, channelled, fluted or otherwise decorated by moulding.
The heading excludes, inter alia, pipes and guttering and the like, such as rain-water drain-pipes (heading 69.06), even if used for constructional purposes.
The importer supports classification in heading 6905, as “other ceramic constructional goods”. The importer notes that the tariff text “constructional goods” is not defined in the HTSUS. However, the importer notes that the word “goods” as that word is used in General Note 1, HTSUS, is broad enough to describe all articles, products, materials, manufactures, etc., encompassed within the HTSUS. Next, the importer cites to the Webster’s New World Dictionary of the American Language, Second College Ed. (1980), which defines the suffix “al” as “an adj.-forming suffix meaning of, like, or suitable for” to conclude that the word “constructional” in the heading text “constructional goods” includes goods (i.e., everything in the tariff) which are of a kind, like, suitable for, having the form or character of, etc., used for construction. Importer argues that the word “constructional” is used uniformly throughout the tariff to denote that goods are suitable for use or principally used in construction. The importer concludes that because the stoneware ceramic slabs are “goods” principally used in construction, they are classified as “other constructional goods” of heading 69.05.
The importer argues that the stoneware ceramic slabs are goods used in construction because after importation they will be cut to size and shape and further worked to construct countertops for kitchens and bathrooms, vanities, wall facings, flooring, components of dinette and dining room tables, and artwork. The importer explains that the construction industry recognizes that goods used in construction must necessarily be cut or further worked after importation. Therefore, the importer concludes that the stoneware ceramic slabs are “other ceramic constructional goods” of heading 6905.
The importer argues that CBP has routinely treated slabs of natural and agglomerated stone as a type of construction material, and that to be uniform in its definition and application of the word “constructional,” CBP must conclude that stoneware ceramic slabs are also “constructional goods.” We disagree.
Absent contrary legislative intent, HTSUS terms are to be “construed (according) to their common and popular meaning.’” Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999). “Courts may rely upon their own understanding of terms and/or consult dictionaries, encyclopedias, scientific authorities, and other reliable information.” Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988); BASF Corp. v. United States, 798 F. Supp. 2d 1353, 1357 (2011).
In Apex Universal v. United States, 22 C.I.T. 465 (1998), the Court of International Trade addressed the meaning and scope of “other ceramic constructional goods” of heading 6905. In that case, Plaintiff argued that pavement markers should be considered "other constructional goods" under subheading 6905.90.00 because pavement markers are designed to be used in the construction of roadways. The Court disagreed. The Court determined that under the rule of ejusdem generis, constructional goods under HTSUS heading 6905 are limited to those used in the construction of architectural structures such as buildings and similar edifices. Ejusdem generis, meaning "of the same kind," dictates that "where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified." Sports Graphics, 24 F.3d at 1392 (citation omitted). In classification cases, "ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms." Id.; Totes, Inc. v. United States, 18 C.I.T. 919, 923-24, 865 F. Supp. 867, 871 (1994) (citing Sports Graphics), aff'd, 69 F.3d 495 (Fed. Cir. 1995).
In Apex, the Court noted that the ENs for heading 6905 refer to items "which, like bricks, are used in constructional or building work." Furthermore, the examples enumerated in the text of heading 6905 include "roofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods[.]" The Court concluded that despite the fact that the ENs refer to "constructional or building work," the enumerated list suggests that goods under this heading are either 1) an integral element for the creation of a building structure, or 2) an item attached to an already completed building structure for either a decorative or a functional purpose. Because the pavement markers were designed specifically to be attached to a finished road surface, they were not intended for use in building construction. Under the rule of ejusdem generis, the markers did not fit within the meaning of heading 6905.
Pursuant to Apex, all of the articles named in the text of heading 6905, as well as those specifically enumerated in the exemplars in the ENs, are integral to the framework of a building structure, or, as in the case of architectural ornaments, are worked into the framework of a building structure to make it more secure (i.e., as in balustrades or corbels) and/or more attractive (i.e., as friezes, gargoyles). Unlike the articles named in the text of heading 6905, the stoneware ceramic slabs are not recognizable as any specific ceramic articles, and are instead imported in the form of slabs measuring 10.5 feet long by 4.7 feet wide and ranging between .27 and 1.37 inches in thickness. Unlike the articles named in the text of heading 6905, the slabs have no dedicated use at the time of importation.
Merchandise is classified in the condition as imported. See United States v Citroen, 223 U.S. 407 (1911) (“The rule is well established that in order to produce uniformity in the imposition of duties, the dutiable classification of articles imported must be ascertained at the time of examination of the imported article itself, in the condition in which it is imported.” [citations omitted]); see also HQ 967463 (February 10, 2005) (“As a general rule, merchandise is classified in its condition as imported.”) As such, the stoneware ceramic slabs are unlike roofing tiles, chimney pots, cowls, chimney liners and architectural ornaments in that, in the condition as imported, they are not integral to the framework of a building structure, or, as in the case of architectural ornaments, are not worked into the framework of a building structure to make it more secure (i.e., as in balustrades or corbels) and/or more attractive (i.e., as friezes, gargoyles). Therefore, the merchandise is not described by the text of heading 6905 as “other ceramic constructional goods”.
While the importer recognizes that the merchandise is imported in the form of rectangular slabs, and that these slabs will be further worked after importation to produce a variety of items, the importer argues that the text of heading 6905 is not limited to “finished”, recognizable articles with dedicated uses at the time of importation.
The importer argues that the articles named in the text of heading 6905 are not “finished” articles. For example, it explains that multiple roofing tiles and chimney liners must be used together to construct a recognizable or finished roof or a recognizable or finished chimney lining. However, although multiple roofing tiles must be used to construct a roof, the language of heading 6905 specifically provides for “roofing tiles.” It is an eo nomine provision for roofing tiles. The importer also argues that like the stoneware ceramic slabs that must be further worked and cut after importation, roofing tiles must also be cut after importation and during the construction of a roof. However, it is not whether the roofing tiles must be cut to size or further processed after importation that determines their classification in heading 6905. The classification of roofing tiles in heading 6905 is determined based on whether the product is identifiable as roofing tiles upon importation. Importantly, we note that the “finished” article for purposes of classification in heading 6905 is the roofing tile itself, and not the roof that will be constructed with the roofing tiles.
The importer argues that the articles of heading 6905 are not limited to articles with dedicated uses at the time of importation because articles such as roofing tiles may be used as floor or wall tiles; and goods such as chimney liners may be used to build walls, drains, and supports for bookshelves, etc. While it is entirely possible that a ceramic good of heading 6905 may be put to a fugitive use after importation, this has no bearing on classification at the time of importation. So, although one may choose to use the chimney liners as drains after importation, the chimney liners will be classified in heading 6905 at importation based on GRI 1.
Finally, the importer argues that the stoneware ceramic slabs should be classified as “other ceramic constructional goods” of heading 6905, in the same manner that CBP classifies slabs of natural stone as building stone in heading 6802 and slabs of agglomerated stone in the subheading of 6810 which covers building/constructional goods.
The importer cites the EN to heading 6802, which states, in relevant part, that the heading includes not only constructional stone (including facing slabs), but also articles such as steps, cornices, pediments. . . .”. The importer cites the EN to heading 6810, which states, in relevant part, that the heading covers blocks, tiles; ceiling or wall mesh or lath (consisting of a wire framework combined with a predominating proportion of concrete); flagstones; beams; hollow flooring slabs and other constructional goods. . .”. Finally the importer cites the EN to heading 70.16, which states, in relevant part, that the heading covers glass slabs used for construction purposes. The importer concludes that, in order to be uniform in its definition and application of the word constructional, CBP must conclude that like natural and agglomerated stone slabs, stoneware ceramic slabs are also constructional goods.
Certain types of stone, including marble, granite, etc., are recognized in the industry and the tariff as monumental or building stone. Therefore, all forms and articles made from these stones are classified in heading 6802, HTSUS, whether or not the product is actually used for monumental or building purposes (i.e., even if the item is used as a household article, decorative article or for another purpose). While stones like marble, granite, etc., are regarded in the industry and recognized in the HTSUS as monumental or building stone, types of ceramics (i.e., porcelain, china, stoneware, earthenware, etc.) are not recognized in the industry as constructional ceramics. Therefore, the importer’s argument that the text of heading 68.02 is relevant to the interpretation of chapter 69 is clearly erroneous.
Moreover, in comparing the coverage of headings 6905 to headings 6802, 6810, and 7016, HTSUS, none of the headings referred to by the importer include the phrase “constructional goods”. While the EN’s might refer to articles covered by these other headings as “constructional goods”, the EN’s may not be used to broaden the scope of heading text. The text of heading 6905, HTSUS, is substantially different than the text of headings 6802, 6810 and 7016, HTSUS, and therefore the argument that they should somehow have a uniform scope is misplaced.
Although we do not find the headings cited by the importer to be comparable, we do find some guidance in our prior classification of slabs in heading 6810, HTSUS. In HQ 965251, dated August 27, 2002, slabs of agglomerated stone used as countertops and vanities were classified in the provision for other articles of artificial stone, in subheading 6810.99.00, HTSUS. They were, therefore, not classified under the more specific provision for tiles, flagstones, bricks and similar articles of artificial stone in subheading 6810.19.50, HTSUS. The provision for “similar articles” in 6810.19.50, HTSUS, would embrace artificial stone items generally used in construction and building (items similar to tiles, flagstones and bricks). HQ 965251 held that agglomerated stone slabs destined to be used as countertops were not regarded as the type of merchandise used in building and construction. In applying HQ 965251 to the merchandise at issue, we can also conclude that the ceramic slabs should not be regarded as constructional ceramics and are also classified in a more general “other” category.
Therefore, the stoneware ceramic slabs do not meet the terms of heading 6905. The stoneware ceramic slabs are classified in heading 6914.
HOLDING:
Accordingly, the stoneware ceramic slabs are classified in subheading 6914.90.8000, which provides for “Other ceramic articles: Other: Other.” The column one, general rate of duty is 5.6 percent ad valorem.
EFFECT ON OTHER RULINGS:
NY N234655, dated January 28, 2013, is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial Trade Facilitation Division