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HQ 959599




February 19, 1998

CLA-2 RR:CR:GC 959599 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6802.10.00; 6802.22.00; 9403.90.80

Port Director
U.S. Customs Service
511 NW Broadway Street
Portland, OR 97209

RE: Protest 2904-96-100148; floor and mosaic limestone; tiled tabletop

Dear Port Director:

The following is our response to Protest 2904-96-100148, concerning your decision in classifying certain floor and mosaic tiles and a tiled tabletop under the Harmonized Tariff Schedule of the United States (HTSUS). No description of the article was provided by protestant; however, a Customs officer has examined all of the articles.

FACTS:

The subject articles have been identified as ceramic limestone floor tile, mosaic tile with fiberglass backing and plywood and tabletops with small bits of embedded limestone tile. According to the protestant, all of the limestone was originally chipped by hand from solid limestone in Israel and used as flooring in buildings constructed during biblical times. The limestone is removed from the site in pieces that measure 6 to 8 inches thick. Their surface dimensions vary, but on average the pieces measure between 1 and 2 feet in diameter. In Israel, the stones are then sawn to remove « to 1 inch slices off the top surface. Those removed slices are then cut into floor tiles of approximately 1 foot square or into « inch squares and attached to a fiberglass backing. Random, jagged pieces of the slices are attached to plywood for use as tabletops.

Protestant entered the articles under subheading 9706.00.00, HTSUS, as other antiques of an age exceeding 100 years. You reclassified the articles under subheading 6802.10.00, HTSUS, as tiles of other calcareous stone and, by application of Additional U. S. Note 2 to Chapter 97, assessed an additional duty of 6.6 percent ad valorem. Protestant asserts that the even if the reclassification were correct, Additional U.S. Note 2 to Chapter 97, does not apply to the
limestone. The entries were liquidated on June 7, 1996, and the protest was timely filed on June 24, 1996.

Although the articles were entered under subheading 9706.00.00, HTSUS, a free provision obviating any claim in the entries for preferential tariff treatment under the U.S. Israel Free Trade Area Implementation Act of 1985, as amended ("the U.S.-Israel FTA"), the articles appear to be eligible for such preferential treatment in the event that they are reclassified under other HTSUS provision to which the U.S.-Israel FTA applies (a completed Certificate of Origin [Form A] is included in the file).

ISSUES:

(1) Whether the limestone floor and mosaic tile and tabletops are classified under subheading 9706.00.00, HTSUS, as other antiques of an age exceeding 100 years or under subheading 6802.10.00, HTSUS, as tiles of other calcareous stone.

(2) Whether protestant should have been assessed an additional duty of 6.6 percent ad valorem under Additional U.S. Note 2 of Chapter 97, HTSUS.

LAW AND ANALYSIS:

Antiquity Claim

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the Harmonized System is such that virtually all goods are classified by application of GRI 1, that is, 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, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9706, HTSUS, provides for "Antiques of an age exceeding one hundred years."
The ENs to Chapter 97, HTSUS, state, in pertinent part, that:

This Chapter covers:

(D) Antiques of an age exceeding 100 years (heading 97.06).

It should, however, be noted that such articles are classified in other Chapters of the Nomenclature if they do not comply with the conditions arising from the terms of the Notes or headings of this Chapter.

The ENs to heading 9706 state, in pertinent part, that:

This heading covers all antiques of an age exceeding one hundred years, provided they are not included in headings 97.01 to 97.05. The interest of these articles derives from their age and, as a general consequence, their resulting rarity.

Provided they retain their original character, the heading includes antique articles which have been repaired or restored. For example, the heading includes: antique furniture incorporating parts of modern manufacture (e.g., reinforcements and repairs); antique tapestries, leather or fabrics, mounted on modern wood.

Protestant asserts that the cutting and reconfiguring of the limestone into modern floor tile, mosaic tile with a backing, and tabletops does not alter it in such a way as to prevent its classification as an antique. We disagree. The changing of the size and shape of the limestone into floor tile and mounted mosaic tile has created new and different articles of commerce clearly distinguishable from the original limestone block. As a result the character of the article to which a claim of antiquity could be made, the floor stone, has been lost. The tiles and tabletops are newly-made articles which merely have as a constituent material stone which is more than 100 years old. The imported articles themselves are not antiques.

Based on the above analysis, we find that the floor tile is classifiable under subheading 6802.22.00, HTSUS, as "[w]orked 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 monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface: Other calcareous stone." The mosaic tile is classified under subheading 6802.10.00, 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): Tiles, cubes and similar articles, whether or not rectangular (including square), the largest surface area of which is capable of being enclosed in a square the side of which is less than 7 cm; artificially colored granules, chipping and powder." The tabletops are classifiable under subheading 9403.90.80, HTSUS, as "Other furniture and parts thereof: Parts: Other: Other."

Additional Duty

The additional duty of 6.6 percent ad valorem that was assessed in this instance is provided for in Additional U.S. Note 2 to Chapter 97, which states, in pertinent part, as follows:

Whenever an article is entered for sale under heading 9706, and thereafter determined to be not over 100 years of age, a duty of 6.6 percent ad valorem for articles subject to column 1-general treatment... shall be assessed thereon in addition to any other duty or penalty imposed on such article under the tariff schedule.

Protestant asserts that because the articles qualify for special duty treatment under the U.S.-Israel FTA they are subject to special column 1 treatment; inasmuch as the Note only applies to column 1- general treatment, the Note should not apply. We agree. The HTSUS indicates that column one is subdivided into two categories: general treatment and special treatment. A plain reading of Additional U.S. Note 2 to Chapter 97, clearly indicates that the 6.6 percent ad valorem rate only applies when an article's duty rate is derived from the general category of column 1. As the duty rate on these articles, classified as set forth in this decision, are derived from the special column, the 6.6 percent rate does not apply.

HOLDING:

The protest should be DENIED in part and ALLOWED in part. The floor tile is classifiable under subheading 6802.22.00, HTSUS, as "[w]orked 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 monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface: Other calcareous stone," with a special column one duty rate of free.

The mosaic tile is classifiable under subheading 6802.10.00, HTSUS, which provides for "[w]orked 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, chipping and powder, of natural stone (including slate): Tiles, cubes and similar articles, whether or not rectangular (including square), the largest surface area of which is capable of being enclosed in a square the side of which is less than 7 cm; artificially colored granules, chipping and powder," with a special column one duty rate of free.

The tabletops are classifiable under subheading 9403.90.80, HTSUS, as "[o]ther furniture and parts thereof: Parts:Other:Other," with a special column one duty rate of free.

No additional duties are applicable under Additional U.S. Note 2 to Chapter 97.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision 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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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