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HQ 957893



February 12, 1997

CLA RR:TC:MM 957893 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6908.10.10

Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044-3130

RE: IA 18/94; T.D. 96-80, 61 Fed. Reg. 64192,64193 (December 3, 1996); Nippon Kogasku (USA) Inc. v. U. S., C.J. Tower & Sons v. U.S., Semperit Industrial Products, Inc. v. U.S., Eastalco Aluminum Co. v. U. S., (Eastalco I),(Eastalco II), (Eastalco III)

Dear Port Director:

This is in response to your memorandum of April 18, 1995, (CLA-2-69:L:CO RQM), relating to a request for internal advice initiated by a letter dated August 12, 1994, from counsel, on behalf of Dal-Tile Corporation. The request concerns the classification of 2" x 2" glazed ceramic tile under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were submitted. In preparing this ruling, consideration was given to a June 12, 1995, supplemental submission made by counsel on behalf of Dal-Tile as well as arguments presented at a meeting on June 15, 1995. We regret the delay in responding.

FACTS:

The merchandise in question consists of 2" x 2" and other small-size ceramic tile also known as specialty mosaic tile. The subject tiles were entered under subheading 6908.10.20, HTSUS, as other tiles, cubes and similar articles, whether or not rectangular, the largest surface areas of which is capable of being enclosed in a square the side of which is less than 7 cm. By Notice of Action dated July 27, 1994, Dal-Tile was advised that the subject tiles were reclassified under subheading 6908.10.10, HTSUS, as tiles, cubes and similar articles, whether or not rectangular, the largest surface areas of which is capable of being enclosed in a square the side of which is less than 7 cm having not over 3229 tiles per square meter, most of which have faces bounded entirely by straight lines.

Counsel argues that the tile is not classifiable under subheading 6908.10.10, HTSUS, because it is not "substantially crystalline". Laboratory Reports prepared by the Customs Office of Laboratory and Scientific Services Division concerning 2x2 tile entered by Dal-Tile in 1993, indicate the following:

1993 2X2 TILE CRYSTALLINITY RESULTS

Laboratory Report
Number
Report Date
Crystallinity Result

5-93-30269-005
3-16-93

5-93-30272-005
3-16-93

5-94-30278-005
1-12-94

5-93-30319-005
3-30-93

5-93-30342-005

5-93-30343-005

5-93-30344-005

5-93-30393-005
4-14-93

5-93-30680-005
6-16-93

Additionally, counsel states that should Customs determine the tile to be ceramic, the subject tile meets the necessary size requirements for classification under subheading 6908.10, HTSUS. However, counsel claims that the language "...most of which have faces bounded entirely by straight lines", prevents the subject tile from classification under subheading 6908.10.10, HTSUS. According to counsel, all of the subject tile have faces bounded entirely by straight lines and thus the "most" requirement is not met.

ISSUE:

I. Do the subject articles meet the ceramic definition requirement of "substantially crystalline"?

II. Does the language "most of which have faces bounded entirely by straight lines" of subheading 6908.10.10, HTSUS, include tile when all of its faces are bounded entirely by straight lines?

LAW AND ANALYSIS:

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

6908 Glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing:

6908.10 Tiles, cubes and similar articles, whether or not rectangular, the largest surface area of which is capable of being enclosed in a square the side of which is less than 7 cm:

6908.10.10 Having not over 3229 tiles per square meter, most of which have faces bounded entirely by straight line.

Other:

6908.10.20 The largest surface area of which is less than 38.7 cm.

I. Crystallinity

Additional U.S. Note 1 (a) to Chapter 69, HTSUS, requires the presence of certain compositional characteristics for an article to be considered classifiable as ceramic ware for tariff purposes. Additional U.S. Note 1(a) states that:

For the purposes of this chapter, a "ceramic article" is a shaped article having a glazed or unglazed body of crystalline or substantially crystalline structure, the body of which is composed essentially of inorganic nonmetallic substances and is formed and subsequently hardened by such heat treatment that the body, if reheated to pyrometric cone 020, would not become more dense, harder, or less porous, but does not include any glass articles.

This Note requires that all articles classifiable as "ceramic" exhibit certain affects on compositional characteristics of which crystallinity is one. Customs understands that the choice of a particular ware's composition is dictated by the processes and materials each individual manufacturer chooses. This "right to choose" produces a varied result in the presence and amount of compositional characteristics. These results vary not only from manufacturer to manufacturer, but article to article, and in this instance tile to tile. We note however, that while varied results may occur, all of the subject tiles are employed for the identical end use.

In this instance, counsel has suggested that its tile is not "ceramic tile" for tariff purposes because the tile's crystallinity amounts are not sufficient to meet the "substantially crystalline" requirement of Additional U.S. Note 1(a) to Chapter 69. We disagree.

After thorough consideration of state-of-the-art ceramic technology, the Customs Office of Laboratory and Scientific Services Division set forth its definition of "substantially crystalline". T.D. 96-80, 61 Fed. Reg. 64192,64193 (December 3, 1996)[hereinafter T.D. 96-80] states, in pertinent part, that:

Customs will consider the term "crystalline or substantially crystalline" as used in U.S. Note 1 to Chapter 69, as it pertains to floor and wall tile, to be satisfied for articles having a level of crystallinity that is clearly discernable by x-ray diffraction or other analytical methodology that is generally accepted by the scientific community. Normally, a qualitative analysis, using the XRD technique, that indicates some degree of crystallinity exists in the article would be sufficient to verify that the floor or wall tile article has a sufficient crystalline nature to satisfy the criteria "crystalline or substantially crystalline structure" for Customs purposes.

Additionally, Customs understands the phrase "substantially crystalline" in Additional U.S. Note 1(a) to Chapter 69 is present simply to distinguish ceramics from glass.

Schedule 5, Part 2, headnote 2(a), Tariff Schedule of the United States (TSUS), in the Tariff Classification Study, (now the International Trade Commission) (Explanatory Notes, Volume 7, at 77-78 1960) states, in pertinent part, that:

The definition of "ceramic articles" specifically excludes any glass article from its scope. The primary distinction between the ceramic articles of part 2 and glass articles of part 3 is that glass is essentially noncrystalline in structure whereas ceramic ware is essentially crystalline. It is true, of course, that opalescent glass does have small quantities of finely divided crystals but they are not present in sufficient amount to present any serious problem. Ceramic articles have a body which is substantially crystalline.

Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988, states that "on a case-by-case basis" prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 100-576, 100th cong., 2d Sess. 548, 550 (1988). The language of Additional U.S. Note 1(a), HTSUS, is identical to the language of Schedule 5, Part 2, Headnote 2(a), TSUS.

All of the lab reports indicate that the subject tile has a level of crystallinity that is clearly discernable by x-ray diffraction or other analytical methodology generally accepted by the scientific community. Furthermore, the qualitative analysis in each lab report indicates that more than a trace amount of crystallinity exists in the tiles. Therefore, the lab reports verify that the subject tile has a sufficient crystalline nature to satisfy the criteria "crystalline or substantially crystalline structure" requirement of Additional U.S. Note 1(a) to Chapter 69.

Counsel asserts that the Eastalco line of cases, [Eastalco Aluminum Co. v. United States, 10 CIT 622 (1986) (Eastalco I), Eastalco Aluminum Co. v. United States, 13 CIT 864, 726 F. Supp. 1342 (CIT 1989) (Eastalco II), Eastalco Aluminum Co. v. United States, 916 F.2d 1568 (Fed. Cir. 1990) (Eastalco III)] required ceramic articles to have a measurement of 50% or more crystallinity. We disagree. While the Court, in Eastalco II, mentions a 50% figure, this percentage was introduced by the parties to the case. It was not necessary for, nor did, the Court address the 50% figure when rendering its final classification decision. The Eastalco cases merely determined that the subject blocks, which were at the most 6% crystalline, were not "substantially crystalline" for tariff classification purposes.

II. Definition of the language "most of which have faces bounded entirely by straight lines"

In an effort to determine the classification of an article, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

The term "most" is not defined in either the HTSUS or the ENs. Terms not defined in the HTSUS or in the EN's are construed in accordance with their common and commercial meaning. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

The term "most" is defined as "1. In the greatest quantity, amount, or measure, degree or number: to win the most votes. 2. In the majority of instances: Most exercise is beneficial. 3. greatest, as in size or extent: the most talent. 4. For the most part see part. 5. The greatest quantity, amount, or degree; the utmost: the most he can hope for is a passing grade. 6. The greatest number or the majority of a class specified: Most of his writing is rubbish. Most of the ornaments were broken." Random House Dictionary of the English Language: The Unabridged Edition, (1973).

Customs finds that "most" as used in subheading 6908.10.10, HTSUS, means; in the majority of instances: the greatest number or the majority of a class specified. Therefore, for this subheading's purposes, "most of which have faces bounded entirely by straight lines" will include any and all entries of tiles that have faces bounded entirely by straight lines in the majority of instances. The majority of subject tiles have faces bounded entirely by straight lines. Therefore, they meet the description of subheading 6908.10.10, HTSUS.

Counsel suggests that the phrase "most of which have faces bounded entirely by straight lines" excludes the present articles. According to counsel, the subject articles are excluded because all of the articles, not most of them have faces bounded entirely by straight lines. In other words, they are excluded from the heading because they exceed the "most" requirement.

In support of this argument, counsel cites Semperit Industrial Products, Inc. v. United States, Slip Op. 94-100 (1994)(Semperit). Semperit pertained to the interpretation of the phrase " ...with textile components in which man-made fibers predominate by weight over any other single textile fiber". The court endeavored to determine the common meaning, in the context of the heading, of the word "predominate". It consulted a dictionary and determined that "predominate" contemplates a hierarchy between two or more elements. Counsel suggests that like "predominate", the word "most" requires the presence of two different elements. We find this argument unpersuasive. No thesaurus lists the two words as serving as synonyms for the other. "Predominate" and "most" have different meanings.

Based on the analysis above, we find that the subject tiles are classifiable under subheading 6908.10.10, HTSUS, as glazed ceramic flags and paving, hearth or wall tiles; glazed ceramic mosaic cubes and the like, whether or not on a backing: tiles, cubes and similar articles, whether or not rectangular, the largest surface area of which is capable of being enclosed in a square the side of which is less than 7 cm: having not over 3229 tiles per square meter, most of which have faces bounded entirely by straight line.

HOLDING:

The subject tiles meet the requirements for "substantially crystalline" as outlined in T.D. 96-80, and the definition of "most" therefore they are classifiable under subheading 6908.10.10, HTSUS, with a general column one rate of duty of 19.8% ad valorem.

This decision should be mailed by your office to counsel for the internal advice requester no later than 60 days from the date of this letter. On that date, 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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