CLA-2 OT:RR:CTF:CPMM H270905 MAB
Port Director
Port of San Juan
U.S. Customs and Border Protection
#1 La Puntilla Street
Old San Juan, PR 00901
Attn: Omar DeJesus, Import Specialist
Nickolle Rivera, Import Specialist
Re: Application for Further Review of Protest No: 4909-15-100029; travertine and ceramic tiles imported from Italy
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4909-15-100029, timely filed on behalf of Representaciones Y Suministros Alba, Inc. (“Protestant”) on July 21, 2015. The AFR concerns the classification of travertine and ceramic tiles imported from Italy under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of travertine and ceramic tiles imported from Italy. On the commercial invoices, packing list, and shipping documents, the tiles are generally described as “travertine tiles” and specifically as “Terra Light VC Brushed Unfilled Tiles (measuring 60.0 cm x 40.0 cm x 1.3 cm)” and “Terra Light VC Pool Coping Brushed Unfilled Tiles (measuring 30.0 cm x 30.0 cm x 3 cm).” The instant merchandise was imported on August 28, 2014, and entered in a single entry on September 11, 2014, under subheading 6802.91.25, HTSUS, which provides for: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate): Other: Marble, travertine and alabaster: Travertine: Other.”
Upon entry, U.S. Customs and Border Protection (“CBP”) inspectors performed an intensive cargo examination and retrieved four (4) samples of the instant tiles for classification by CBP’s Import Analysis Branch (“IAB”). On September 23, 2014, CBP IAB sent the four (4) samples to the CBP Laboratories and Scientific Services Directorate (“LSSD”) in San Juan, Puerto Rico for further analysis. Due to a case backlog, CBP LSSD San Juan forwarded the samples to CBP LSSD in Houston, Texas for assistance.
In CBP Laboratory Report Nos. SJ20140389, SJ20140390, SJ20140391, and SJ20140392, based on information developed by CBP LSSD Houston, CBP LSSD San Juan reported the following:
SJ20140389 (dated November 12, 2014): The sample is described as “Stone – Terra Light VC Brushed Unfilled 60x60x1.3 (White).” The sample consists of one tile, received cut into two pieces. The tile has a tan colored body, and the top is glazed. The bottom surface has a raised square pattern and is tan/gray in color. Each piece of the tile measures approximately 30.6 x 59.5 & 29.1 x 59.5 cm in facial area and both have a thickness of 1.0 cm. The tile, when “put together” measures approximately 59.7 x 59.5 cm (3552.2 square centimeters) in facial area and has a thickness of 1.0 cm.
Laboratory analysis indicates the sample is a glazed ceramic tile having an average water absorption of less than 0.5 percent (emphasis added). The tile has a surface area that cannot be enclosed in a square the side of which is 30 cm or less.
Methods: CBPL 69-06, CBPL 69-07, CBPL 69-03.
SJ20140390 (dated November 5, 2014): The sample is described as “Stone – Terra Light VC Pool Coping Brushed Unfilled 30x30x3.” It is a travertine, a naturally occurring calcareous stone (emphasis added). The piece sent for analysis has a layered appearance and is tan/yellowish and grey in color and appears to have been cut from a larger tile or slab. It has a flat top with an open cell structure throughout, and the top has been “honed/worked” further than simply cut or sawn, but does not have a polished reflective appearance. The sample has evenly cut side surfaces with one broken corner, and one side is rounded off. The stone measures approximately 30.0 x. 29.9 cm in facial area (897 square centimeters) and 3.0 cm in thickness. It is not agglomerated with any material.
Method: CBPL 25-01
SJ20140391 (dated November 20, 2014): The sample is described as “Stone – Terra Light VC Brushed Unfilled 60x40x1.3 (White). The sample consists of one tan colored tile. The top surface is textured, has orange colored “specs” throughout and is glazed. The bottom surface has a raised square pattern. The tile measures approximately 30.0 x. 60.7 cm (1821.0 square centimeters) in facial area and has a thickness of 0.99 cm.
Laboratory analysis indicates the sample is a glazed ceramic tile having an average water absorption less than 0.5 percent (emphasis added). The tile has a surface area that cannot be enclosed in a square the side of which is 30 cm or less.
Methods: CBPL 69-06, CBPL 69-07 & CBPL 69-03.
SJ20140392 (dated November 12, 2014): The sample is described as “Stone – Terra Light VC Brushed Unfilled 60x40x1.3 (Black).” The sample consists of one black/gray colored tile. The top surface is textured like sand paper, and has small depressions “dots” approximately 1 cm apart arranged in a symmetrical pattern throughout the tile. The bottom surface has a raised square pattern. The tile measures approximately 30 x 60.6 cm in facial area (1818.0 square centimeters) and 1.2 cm in thickness.
Laboratory analysis indicates the sample is a glazed ceramic tile having an average water consumption less than 0.5 percent (emphasis added). The tile has a surface area that cannot be enclosed in a square the side of which is 30 cm or less.
Methods: CBPL 69-06, CBPL 69-07 & CBPL 69-03.
Based on the findings set forth in the aforementioned CBP Laboratory Reports, on January 23, 2015, CBP liquidated the entry in regard to what was described on Line 001 as “Terra Light VC Brushed Unfilled Tiles (measuring 60.0 x 40.0 x 1.3 cm)” in subheading 6908.90.0051, HTSUSA (Annotated) (2014), which provides: “Glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing: Other: Other,” and in regard to what was described on Line 002 as “Terra Light VC Pool Coping Brushed Unfilled Tiles (measuring 30.0 x 30.0 x 3 cm)” in subheading 6802.91.2000, HTSUSA (2014), which provides for: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate): Other: Marble, travertine and alabaster: Travertine: Articles of subheading 6802.21.10 that have been dressed or polished, but not further worked.”
Protestant filed this Protest and AFR on July 21, 2015, claiming classification as entered.
Upon further inquiry, CBP LSSD Houston confirmed that the three (3) aforementioned tile samples they analyzed and determined were made of glazed ceramic (see infra, SJ 20140389, SJ20140391, SJ 20140392), each came with an attached label which stated (in Italian) the following: “Conforme ISO 13006-G.”
ISO 13006-G states the following:
This International Standard defines terms and establishes classifications, characteristics and marking requirements for ceramic tiles of the best commercial quality (first quality). This International Standard is not
applicable to tiles made by other than normal processes of extrusion or
dry pressing. It is not applicable to decorative accessories or trim such
as edges, corners, skirting, capping, coves, beads, steps, curved tiles and other accessory pieces or mosaics (e.g., any piece that can fit into an area
of 49 cm²) (emphasis added).
ISSUES:
1/ Whether the instant tiles are of travertine natural stone of heading 6802, HTSUS, or glazed ceramic of heading 6908, HTSUS?
2/ If the instant tiles are of travertine natural stone of heading 6802, HTSUS, are they classified in subheading 6802.91.25, HTSUS, as “Articles of subheading 6802.21.10 that have been dressed or polished, but not further worked” of subheading 6802.91.20, HTSUS, or in subheading 6802.91.25, HTSUS, as “Other”?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4909-15-100029 is properly warranted pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs Courts.
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 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, 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, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2014 HTSUS provisions under consideration are as follows:
6802 Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate):
Other:
6802.91 Marble, travertine and alabaster:
Travertine:
6802.91.20 Articles of subheading 6802.21.10 that have been dressed or polished, but not further worked
6802.91.25 Other
* * * * *
6908 Glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing:
* * * * *
Additional U.S. Note 5(d) to Chapter 69, HTSUS, provides:
For the purposes of headings 6909 through 6914:
(d) The water absorption of a ceramic body shall be determined by ASTM test method designated C373 (except that test specimens may have a minimum weight of 10 g, and may have one large surface glazed).
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 68.02 provides, in pertinent part, as follows:
This heading covers natural monumental or building stone (except slate) which
has been worked beyond the stage of the normal quarry products of Chapter 25.
The General EN to Chapter 69 provides, in pertinent part, as follows:
The term “ceramic products” applies to products obtained:
By firing inorganic, non-metallic materials which have been prepared and
shaped previously at, in general, room temperature. Raw materials
comprise, inter alia, clays, siliceous materials, materials with a high melting
point, such as oxides, carbides, nitrides, graphite or other carbon, and in
some cases binders such as refractory clays or phosphates.
(B) From rock (e.g., steatite), fired after shaping.
* * * * *
Ceramic products are also very often coloured (either in the body or
superficially), decorated or glazed by using, as appropriate, specially prepared
colours or opacifiers, vitrifiable enamels or glazes, slips, lustres, etc.
Firing, after shaping, is the essential distinction between the goods of this
Chapter and the mineral or stone articles classified in Chapter 68 which are
generally not fired…
The first tariff classification dispute for our consideration arises at the heading level and whether the Italian tiles are described by the terms of heading 6802, HTSUS, or by the terms of heading 6908, HTSUS.
Protestant asserts that all of the Italian tiles at issue in this matter are made from travertine natural stone and therefore are classified in heading 6802, HTSUS, and specifically in subheading 6802.91.25, HTSUS. In regard to the three (3) tile samples that CBP LSSD concluded were made of glazed ceramic and CBP subsequently liquidated and classified in heading 6908, HTSUS, Protestant contends that the descriptions of these tiles in the lab reports do not correspond to the merchandise it imported. Specifically, it contends there are discrepancies in the CBP Laboratory Reports’ descriptions of tile sizes and colors between the “Sample Description” sections and the “Narrative” sections, and also as compared to Protestant’s commercial invoices and packing lists. Protestant also claims that the CBP Laboratory Reports’ narratives, stating that the instant tiles have “a raised square pattern” on their bottom surfaces, do not relate to the physical samples it claims to have submitted with its Protest. Therefore, Protestant submits that CBP LSSD analyzed the wrong samples.
Protestant further explains that its business is remodeling pool areas and that it has never imported “glazed ceramic” from Italy or elsewhere. In the entry at issue in this matter, Protestant includes both a letter and report from the manufacturer or supplier that is identified in its entry, stating that its product is a “completely natural result of our quarries” in Italy, and describing tests that prove its tiles are made from natural stone.
Contrary to Protestant’s claims, all CBP documentary evidence in this matter supports the conclusion that the three (3) samples at issue that were selected from the cargo examination of the instant goods are the same ones that CBP LSSD analyzed. Upon careful review, we find no discrepancies between the information as identified on the three (3) Laboratory Sample Labels (CBP Form 6479), the Entry Sample Lab Cards, the Sample Receipt and Inspection Forms, and photographs.
Furthermore, in response to Protestant’s claims about discrepancies within the three (3) CBP Laboratory Reports at issue in regard to tile sizes, we note that the measurements vary only nominally. The use of “nominal” sizes, i.e., the size listed on the item may not be its actual size, is not uncommon in the tile industry. Also, in regard to the discrepancies in color description between the “Sample Description” and “Narrative” within the CBP Laboratory Reports, we note that some styles of tile are multi-colored and/or an identified color can vary due to the subjective interpretation of the person identifying it (e.g., in CBP Laboratory Report #SJ20140392, the tile that CBP IAB described as “black’ in the Sample Description, the CBP LSSD described as “black/gray” in the narrative). Upon viewing the photographs of the sample at issue, it appears to have both gray and black colors, so in this instance, one could argue that either description is correct. We also note that none of the entry, invoices, or shipping documents identify the colors of the tiles.
Finally, in regard to Protestant’s claim that the raised square patterns on the bottom surfaces of the three (3) tile samples that CBP LSSD analyzed do not conform to the tiles it imported and submitted as exhibits, our office did not receive “Exhibits 8-A and 8-B” and, even if we did, it would be impossible to verify they were similar to the imported tiles. We note that the aforementioned photographs of the samples that CBP LSSD analyzed show the raised square patterns; patterns which are typically found in pressed ceramics and are products of the molds they are fired in, as opposed to natural stone products (i.e., travertine) where the patterns are not present.
It is “well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Co. of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398, C.A.D. 1102 (1973) (hereinafter, “Alcoa”). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91, 462 F. Supp. 378, 381-82, Cust. Dec. 4772 (1978) (citations omitted). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 60 C.C.P.A. at 151, 477 F.2d at 1399.
We note that Protestant has neither shown that CBP’s laboratory results are erroneous, nor proven that its methodology or testing procedures were flawed by a preponderance of the evidence. To the contrary, merely claiming that the samples CBP analyzed were the wrong ones when every indication of documentary evidence proves otherwise, is insufficient to overcome this presumption of correctness. When, as here, a CBP Laboratory has performed testing on the three (3) samples of tile at issue and in accordance with CBP testing methods and prior CBP rulings, CBP will accept the results of its own laboratory. This conclusion is consistent with prior CBP rulings. See, e.g., Headquarters Ruling Letter (“HQ”) 957282, dated March 28, 1995 (“Customs cannot rely on outside reports, which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, generally Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.”) See also HQ 958346, dated February 6, 1996; HQ 963748, dated November 20, 2000; and HQ 965177, dated August 29, 2002.
Furthermore, as noted in the above facts, each of the three (3) samples at issue had a label attached stating (in Italian) that it conformed with ISO 13006-G, which is an international standard that applies to ceramic tiles.
We therefore find that Protestant has not met its burden of establishing that the tile samples as described in CBP Laboratory Reports SJ20140389, SJ20140391, and SJ20140392 were either the wrong ones or are classified as travertine stone in heading 6802, HTSUS. See Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352 (Fed. Cir. 2002) (“Under 28 U.S.C. § 2639(a)(1), ‘a classification of merchandise by Customs is presumed to be correct’…Thus, ‘the burden of proof is upon the party challenging the classification.’”); see also HQ H068277, dated December 30, 2010 and HQ 967512, dated November 23, 2005 (applying this principle to CBP’s review of protests). Thus, we find that the samples as described in these three (3) reports and in the commercial invoices, packing list, and shipping documents as “Terra Light VC Brushed Unfilled Tiles (measuring 60.0 cm x 40.0 cm x 1.3 cm)” are classified as glazed ceramics in heading 6908, HTSUS.
The second tariff classification dispute for our consideration is at the eight (8) digit level in regard to the tile sample described as “Terra Light VC Pool Coping Brushed Unfilled Tiles (measuring 30.0 cm x 30.0 cm x 3 cm)” and described in CBP Laboratory Report SJ20140390 as “Stone - Terra Light VC Pool Coping Brushed Unfilled 30x30x3.” As noted above, CBP classified this as travertine tile in 6802.91.20, HTSUS, as articles of 6802.21.10 (articles of travertine which are simply cut or sawn, with a flat or even surface) which have been dressed or polished but not further worked. However, CBP LSSD noted that the top of the travertine tile had been honed/worked further than simply cut or sawn, thus making classification in 6802.91.20, HTSUS, impossible. Therefore, we find that the “Terra Light VC Pool Coping Brushed Unfilled Tiles (measuring 30.0 cm x 30.0 cm x 3 cm)” should be classified in 6802.91.25, HTSUS, as: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate): Other: Marble, travertine and alabaster: Travertine: Other.”
HOLDING:
By application of GRIs 1 and 6, the tiles described as “Terra Light VC Brushed Unfilled Tiles (measuring 60.0 cm x 40.0 cm x 1.3 cm)” are classified in heading 6908, HTSUS. They are specifically provided for in subheading 6908.90.0051, HTSUSA, which provides: “Glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing: Other: Other.” The 2014 general, column one, rate of duty is 8.5% ad valorem.
By application of GRIs 1 and 6, the tiles described as “Terra Light VC Pool Coping Brushed Unfilled Tiles (measuring 30.0 cm x 30.0 cm x 3 cm)” are classified in heading 6802, HTSUS. They are specifically provided for in subheading 6802.91.25, HTSUS, which provides for: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate): Other: Marble, travertine and alabaster: Travertine: Other.” The 2014 general, column one, rate of duty is 3.7% ad valorem.
You are instructed to DENY the protest in part and GRANT the protest in part.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division