United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0089000 - HQ 0089204 > HQ 0089012

Previous Ruling Next Ruling



HQ 089012


July 12, 1991

CLA-2 CO:R:C:M 089012 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.99.40

District Director
909 First Avenue
Room 2039
Seattle, WA 98174

RE: Protest and Request for Further Review No. 3001-90-101313, November 2, 1990; mixture of crushed rock and sand; Heading 2515; Heading 6815

Dear District Director:

The following is our decision regarding the Protest and Request for Further Review No. 3001-90-101313, dated November 2, 1990. At issue is the classification of top course.

FACTS:

Top course is a mixture of crushed rock and sand, maximum 5/8 inches in diameter. According to the importer, the crushed rock and sand were both obtained by crushing rock mined from glacial deposits that are of a volcanic and granite composition. Following crushing, the material was screened and sorted into various sizes. The top course is approximately 25-30 percent sand and 60-65 percent crushed rock, with the rest of the mixture consisting of gravel.

Upon entry, the importer classified the top course under subheading 2517.10.00 HTSUSA, HTSUSA, which provides for crushed stone. Your office liquidated the top course under subheading 6815.99.40, HTSUSA, which provides for articles of stone or of other mineral substances, not elsewhere specified or included, other, other.

The importer contends that the top course is classified eo nomine under Heading 2517, which provides for, inter alia, pebbles, gravel, broken or crushed stone, of a kind commonly used for concrete aggregates, for road metalling, or for railway or other ballast, shingle and flint, whether or not heat treated. The importer argues that the top course is wholly comprised of the same substance, however graded and/or sized, and as such is not a mixture. Moreover, even if this product was considered a mixture, subheading 2517.10.00, HTSUSA, still applies since the essential character of the top course is represented by crushed rock, not sand.

In addition, the importer argues that "articles" as described in 6815, HTSUSA, are manufactured into particular shapes such as blocks, vats, touchstones, paving blocks, filters; tubes, etc. Since the exemplars listed are much more definite and concrete than the subject product, the top course should not be considered an article classifiable in subheading 6815.99.40, HTSUSA.

ISSUE:

Is the top course classifiable in subheading 6815.99.40, HTSUSA, as articles of stone or of other mineral substances, not elsewhere specified or included, other, other.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 2517, HTSUSA, provides for, inter alia, pebbles, gravel, broken or crushed stone, of a kind commonly used for concrete aggregates, for road metalling, or for railway or other ballast, shingle and flint, whether or not heat treated.

Note 1 to Chapter 25 states the following:

1. Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading. (Emphasis added)

The Explanatory Notes to Chapter 25, page 183, state in pertinent part that "Minerals which have been otherwise processed (e.g...obtained by mixing minerals falling in the same or different headings of this Chapter...) generally fall in later Chapters (for example, Chapter 28 or 68)." (Emphasis in the original) In addition, the Explanatory Notes to Chapter 68 state that this chapter covers various products of Chapter 25 worked to a degree beyond that permitted by Note 1 to Chapter 25.

The crushed rock and the sand, if imported separately, would be classified in two different subheadings. The crushed rock would be classified in subheading 2517.10.00, HTSUSA, as crushed stone. Since the sand is formed from granite, which is a stone classifiable in Heading 2515, HTSUSA, the sand would be classified in subheading 2517.49.00, HTSUSA, which provides for granules and powder of stones of heading 2515 or 2516, other. Therefore, the crushed rock and stone are two distinct products which have been artificially mixed to form the top course. As the language of the above Notes clearly indicate, products which have been obtained by mixing minerals falling in the same heading of Chapter 25 are not classifiable in Chapter 25. As a result, the top course is precluded from classification in Chapter 25.

Heading 6815, HTSUS, does not provide a definition for the term "articles". Tariff terms are considered in accordance with their common and commercial meaning, which are presumed to be the same. Nippon Kogaku (USA) Inc. v. United States, 673 F.2d 380 (1982). To ascertain the common [and commercial] meaning [of a tariff term], in addition to relying upon its own understanding of the terms used, the courts may consult dictionaries, lexicons, the testimony of record, and other reliable sources of information as an aid to its knowledge. Pistorini & Co., Inc. v. United States, 461 F. Supp. 331, 332 (1978). In the instant case, in order to understand the meaning of the word article in this heading, we have looked to dictionary definitions of the term.

The term "article" is described as a thing of a certain kind; a separate item; a thing for sale; a commodity. Webster's New World Dictionary, Third College Edition (1988). The top course is a separate item and is a marketable product which is for sale. It is not necessary for the term "article" in heading 6815, HTSUSA, to be limited to shaped or carved solid objects. Thus, the top course may be regarded as an article and can be classified in subheading 6815.99.40, HTSUSA, which provides for articles of stone or of other mineral substances, not elsewhere specified or included, other, other.

HOLDING:

The protest should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: