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HQ 954292

October 29, 1993
CLA-2 CO:R:C:M 954292 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6908.90.00

District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, Room 2017
San Pedro, California 90731

RE: Protest No. 2704-92-102759; ceramic pavement markers; 6904.90.00; EN 69.04; 6905.90.00; EN 69.05; used in constructional or building work; EN 69.08; EN 69.07; HRL 085566; not for structural purposes; NY 865407; 6914.10.00; EN 69.14

Dear District Director:

This is in response to the Application for Further Review of Protest No. 2704-92-102759, which pertains to the tariff classification of ceramic pavement markers under the Harmonized Tariff Schedule of the United States (HTSUS). Two samples were submitted for examination.

FACTS:

The articles at issue are non-reflective glazed ceramic pavement markers ("pavement markers"), also referred to as traffic buttons. The pavement markers are used on roads, highways and freeways to guide the flow of vehicular traffic and for pedestrian crossings. The pavement markers are fixed to existing road surfaces with cement or other adhesives. The two samples are described as follows:

1) Round in shape measuring approximately 10.16 cm in diameter with a thickness of 1.9 cm.
2) Square shaped, referred to as a "jiggle bar ceramic marker", measuring approximately 15.24 cm on each side with a thickness of 2.5 cm.

The entries of the pavement markers were liquidated starting on April 10, 1992, under subheading 6914.10.00, HTSUS, as other ceramic articles. In a protest timely filed on July 9, 1992, counsel contends that the pavement markers are classified under subheading 6904.90.00, HTSUS, as other ceramic building bricks, flooring blocks, support or filler tiles and the like, or alternatively under subheading 6905.90.00, HTSUS, as other ceramic constructional goods. Furthermore, it has been brought to the attention of this office that classification under subheading 6908.90.00, HTSUS, as other glazed ceramic flags and paving, hearth or wall tiles should be examined.

The competing subheadings are:

6904.90.00 Ceramic building bricks, flooring blocks, support or filler tiles and the like...Other.

6905.90.00 Roofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods...Other....

6908.90.00 Glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing...Other.

6914.10.00 Other ceramic articles...Of porcelain or china.

ISSUE:

Are the ceramic pavement markers classified as other ceramic building bricks, flooring blocks, support or filler tiles and the like under subheading 6904.90.00, HTSUS, or as other ceramic constructional goods under subheading 6905.90.00, HTSUS, or as other glazed ceramic flags and paving, hearth or wall tiles under subheading 6908.90.00, HTSUS, or as other ceramic articles under subheading 6914.10.00, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

In understanding the language of the headings of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 69.04 (pg. 917) states that:

This heading covers non-refractory ceramic bricks (i.e., bricks unable to withstand temperatures of 1,500 degrees Celsius or higher) of the kinds commonly used for building walls, houses, industrial chimney-stacks, etc. Such bricks remain in the heading even if they can also be used for other purposes (e.g., vitrified bricks which can be used for paving or bridge piling, as well as for the construction of buildings)...

This heading includes:

(1) Ordinary solid bricks of rectangular shape, with flat or indented surfaces.

(2) Curved bricks, sometimes perforated, for industrial chimney-stacks.

(3) Hollow bricks, perforated bricks; long hollow flooring blocks and constructional slabs used particularly for flooring, ceilings, etc., in combination with structural steelwork, and support or filler tiles (i.e., ceramic fittings designed to support the blocks while encasing the girders).

(4) Facing bricks (e.g., for facing houses or walls, the surrounds of doors or windows, including special bricks for column capitals, borders, friezes or other architectural decoration).

EN 69.05 (pg. 918) states that "[t]his 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 different 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 plasterwork and formed of wire mesh with fired clay crosses or plates at the intersections, the fired clay forming the major constituent."

The ENs to 69.07 and 69.08 state that these headings cover articles that are used in constructional or building work. The ENs indicate that articles classified in these headings are used or have the potential to be used for their structural value. However, the pavement markers are not designed or used for structural purposes. The pavement markers are fixed by cement or other adhesives to an existing surface to guide the flow of vehicular or pedestrian traffic. The pavement markers do not satisfy the terms of subheading 6904.90.00 or 6905.90.00, HTSUS. Accordingly, the pavement markers are not properly classified within these subheadings.

EN 69.08 (pg. 920) states that heading 6908, HTSUS, covers the articles of the heading 6907, HTSUS, which have been glazed. EN 69.07 (pg. 919) states that:

This heading covers ceramic flags and tiles, including quarry tiles, commonly used for paving or for facing walls, hearths, etc....

Flags and paving, hearth or wall tiles are thinner in relation to their surface dimensions than are building bricks. Whereas bricks play an essential part in constructional work, forming the very framework of the building, flags and tiles are more especially intended for fixing by cement, adhesive or by other means to the surface of existing walls, etc....

EN 69.08 indicates that ceramic flags and tiles are thinner in relation to their surface dimensions than are building bricks. The flags and tiles of heading 6908, HTSUS are not designed or used for structural purposes but are bonded by cement or other adhesives to an existing surface. The composition of the ceramic (porcelain, china, etc.) does not affect classification within heading 6908, HTSUS. See, Headquarters Ruling Letter (HRL) 085566 dated January 2, 1989, which classified thin veneer brick under subheading 6907.90.00, HTSUS, based on the principal distinction drawn by the ENs between building bricks (headings 6904 and 6905, HTSUS) and tiles (headings 6907 and 6908, HTSUS) of their potential for structural use.

The pavement markers are ceramic articles which meet the requirements of heading 6908, HTSUS. The pavement markers are thinner in relation to their surface area. They are not similar to building bricks because they are not designed or used for structural purposes. The pavement markers are attached to an existing roadway by means of cement or other adhesives to guide the flow of vehicular or pedestrian traffic.

Consideration was given to whether the phrase "commonly used for paving or for facing walls, hearths, etc." in EN 69.07 implies that complete coverage or cladding of a surface must take place for articles to be classified as ceramic flag and tiles of heading 6908, HTSUS. This interpretation would exclude the pavement markers from classification under this heading because they never completely cover a street, highway, parking lot, etc. The pavement markers are singly cemented to an existing surface to form lines that guide the flow of vehicular or pedestrian traffic. We do not agree with this opinion. Although EN 69.07 states that "flags and tiles are commonly used for paving or for facing...", it does not limit the articles of this heading to those which only completely cover a surface area.

We are of the opinion that the pavement markers satisfy the terms of heading 6908, HTSUS. Therefore, they are classified under subheading 6908.90.00, HTSUS, as other glazed ceramic flags and paving, hearth or wall tiles. See, New York (NY) 865407 dated August 6, 1991, which classified ceramic tiles used for dividing traffic lanes during construction under subheading 6908.90.00, HTSUS.

Heading 6914, HTSUS, which provides for "Other ceramic articles", is an unlimited general description provision that does not specifically name and describe goods. EN 69.14 (pg. 924) states that "[t]his heading covers all ceramic articles not covered by other headings of this Chapter or in other Chapters of the Nomenclature." As stated previously, the pavement markers are provided for in heading 6908, HTSUS. Therefore, they are not classifiable under heading 6914, HTSUS.

HOLDING:

The ceramic pavement markers are classified under subheading 6908.90.00, HTSUS, as other glazed ceramic flags and paving, hearth or wall tiles. Inasmuch as the rate of duty under the classification indicated is more than the liquidated rate, you should deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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