HQ 0954912 - Protest No. 2809-93-101259; floor tile; other artificial stone tile; 6810.19.12; other agglomerated marble tile; HRL 085266; geological definition; GRI 3(b); essential character; EN Rule 3(b); laboratory report - United States International Trade Commision Rulings

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HQ 954912

November 5, 1993

CLA-2 CO:R:C:M 954912 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6810.19.14

District Director
U.S. Customs Service
555 Battery Street
San Francisco, California 94111

RE: Protest No. 2809-93-101259; floor tile; other artificial stone tile; 6810.19.12; other agglomerated marble tile; HRL 085266; geological definition; GRI 3(b); essential character; EN Rule 3(b); laboratory report

Dear District Director:

This is in response to the Application for Further Review of Protest No. 2809-93-101259, which pertains to the tariff classification of floor tile under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The entry of the floor tile was liquidated on May 14, 1993, under subheading 6810.19.14, HTSUS, as other artificial stone tile. This determination was based on Customs laboratory report #8-93-20515-001 dated April 20, 1993, which found that the submitted floor tile described as "Cement/Marble Chips/Granite (Beige with Glass & Marble Chips)" is a doubled-layer tile. The bottom layer is concrete and the top layer is white cement agglomerated with glass, black stone and marble chips. The laboratory report opined that the sample was "other agglomerated tile; a floor tile." In July 1993, Customs personnel in San Francisco re-confirmed that approximately 30% of the floor tile is geological marble.

In a protest timely filed on July 19, 1993, the protestant contends that the floor tile is classified under subheading 6810.19.12, HTSUS, as other agglomerated marble tile. The protestant contends that the Customs laboratory report is in error. As evidence, the protestant has submitted an independent laboratory report which found that 59.19% of the floor tile was marble CACO3. The breakdown is as follows:

Backing: Grey Cement 350 11.6%
Marble CACO3 15.83%

Wear Layer: Marble CACO3 14.5%
Marble CACO3 of ciment 3.74%
White cement 7.96%
Marble CACO3 25.12&
Granite 3.20%
Glass 2.66%

Total: 84.61%

The competing subheadings are:

6810.19 Articles of cement, of concrete or of artificial stone, whether or not reinforced... Tiles, flagstones, bricks and similar articles...Other...Floor and wall tiles...

6810.19.12 Agglomerate marble tiles

6810.19.14 Other

ISSUE:

Is the floor tile classified as other agglomerate marble tile under subheading 6810.10.12, HTSUS, or as other artificial stone tile under subheading 6810.19.14, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). 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...." The floor tile is classified under subheading 6810.19, HTSUS, which provides for "Articles of cement, of concrete or of artificial stone, whether or not reinforced... Tiles, flagstones, bricks and similar articles...Other...Floor and wall tiles...." The issue to be decided is whether the floor tile is composed of agglomerated marble or of other artificial stone.

In Headquarters Ruling Letter (HRL) 085266, dated September 20, 1989, we held that stone products are classified according to their geological definition rather than their trade name. HRL 085266 dealt with the classification of tiles that were invoiced as marble. A laboratory analysis determined that the tiles were geological limestone, not geological marble. Since limestone and marble are distinct stones with different geological properties, HRL 085266 held that polished limestone was not classifiable as marble under subheading 6802.91, HTSUS. Rather, it was classifiable under subheading 6802.92, HTSUS, as other calcareous stone. Therefore, despite the fact that polished limestone is often referred to as "marble" in the trade, it was the geological definition that was used in determining the tariff classification of the tiles under the HTSUS.

Under the Tariff Schedule of the United States (TSUS) (the precursor tariff schedule to the HTSUS), stones were often classified by their trade names whether or not they met the geological definition of the stone. However, under the HTSUS, it is imperative that the United States, whenever possible, define the various tariff terms in a manner consistent with all nations utilizing the HTS. It is for this reason that we have settled upon the commonly-accepted geological definition of various stones to determine the proper classification under the HTSUS.

The floor tile at issue is composed of different types of stone, i.e., marble, limestone, granite, agglomerated with binders. In this case, pursuant to GRI 2(b), HTSUS, classification is determined by application of GRI 3(b), HTSUS, which provides:

Mixtures, composite goods consisting of different materials or made up of different components...which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character....

In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. In addition, Explanatory Note (EN) Rule 3(b) of the Harmonized Commodity Description and Coding System (HCDCS) (pg. 4), provides further factors which help determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kind of goods.

Therefore, if more geological marble is present than other stone, the essential character of the floor tile would be marble and the floor tile would be classified as agglomerated marble tile under subheading 6810.19.12, HTSUS. However, if more of the other stone is present, the essential character of the floor tile would be other stone and the floor tile would be classified as other agglomerate stone tile under subheading 6810.19.14, HTSUS.

The Customs laboratory report found that the top layer of the floor tile is composed of concrete and the bottom layer is composed of marble chips, other stone chips and glass agglomerated with cement. Furthermore, the laboratory report found that the geological marble portion of the floor tile constitutes approximately 30% of the tile. Therefore, approximately 70% of the tile is attributed to limestone, glass, granite, etc. Since 70% of the tile is attributed to other stones, we are of the opinion that the essential character of the floor tiles is not geological marble but other artificial stone. Therefore, the floor tile is classified under subheading 6810.19.14, HTSUS, as other agglomerated stone tile.

In cases such as this, where a party submits an outside report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify stone products according to their geological make up, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, 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.

Moreover, the independent laboratory report is suspect in this case. Upon adding up the breakdown percentages, a figure of 84.61% is reached and not a 100% figure. Additionally, there are two figures for Marble CACO3, as well as a figure for Marble CACO3 of ciment in the wear layer breakdown.

Finally, please note that the classification of agglomerated stone tiles is being contested in a pending case before the U.S. Court of International Trade. Color Tile vs. United States (Civil Action 91-12-00909).

HOLDING:

The floor tile is classified under subheading 6810.19.14, HTSUS, as other artificial stone tile and, therefore, the protest should be denied.

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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