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HQ W967789

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October 6, 2005

CLA-2 RR:CTF:TCM 967789 AML

CATEGORY: CLASSIFICATION

TARIFF Nos.: 6801.00.0000; 6802.10.0000; 6802.91.1500; 6802.93.0000; 6802.99.0060

Vincent Bowen, Esquire
Counsel to BlueLinx Corporation
2515 K Street, N.W., Suite 101
Washington, D.C. 20037

RE: Five stone articles

Dear Mr. Bowen:

This is in reply to your letters of March 15, 23, and June 7, 2005, to the National Commodity Specialist Division (“NCSD”), New York, in which you made supplemental arguments concerning a binding ruling request made by BlueLinx Corporation. The request concerns the tariff classification of five stone products (which are described in detail below) under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Your client provided detailed descriptions of the articles via its electronic requests for ruling to the NCSD. All the submissions and the ruling request were forwarded to this office for reply. Samples of the articles and a CD depicting the manufacturing process of the goods were presented for our consideration. Consideration was also given to the contentions you made in a supplemental submission dated October 5, 2005.

FACTS:

There are five separate articles at issue. In the original submission they are called “natural stone items.” We paraphrase their descriptions as follows:

1. Natural granite garden paver stones – these are natural granite stones that are cut to size from rough-cut quarry blocks. The granite stones are neither polished nor worked. The granite stones measure 16” x 16” x 1” in thickness and each weighs approximately 28 pounds. A consumer would “normally lay the paver in dirt to create a
garden path.” Your client suggested classification under heading 2516, HTSUS, which provides for granite blocks or slabs.

2. Mosaic pebble stones – these are “natural stones mined from a dry river bed.” The river stones are naturally smooth, varying in color and comprised of quartzite. The stones are selected based on size, ranging in width from 1 to 2 inches by ½ inch. The stones are arranged and glued to a polypropylene netting for ease of installation. The aggregate of stones glued to netting is 12” x 12” by 3/8”. A consumer would normally lay the aggregate in cement or sand to create garden walkways. Your client suggested classification under heading 2517, HTSUS, which provides for, among other things, pebbles, gravel, broken and crushed stone of a kind commonly used for concrete aggregates.”

3 and 3a. Mosaic Stones and Red Sandstone; 4. Grey Granite; and 5. White marble - these are natural stones from the quarry. Remnant pieces of sandstone, granite or marble are broken or crushed into small pieces. From the respective aggregate, pieces are selected based on thickness and face size. The stones range in width from 1 to 2 inches by ½ inch. The stones are arranged and glued to a polypropylene netting for ease of installation. The aggregate of stones glued to netting is 12” x 12” by 3/8”. A consumer would normally lay the aggregate in cement or sand to create garden walkways. Your client alternatively suggested classification under heading 2517, HTSUS, set forth in pertinent part above and under heading 2516, HTSUS, which provides for, among other things, “sandstone: crude or roughly trimmed,” “granite: crude or roughly trimmed” and heading 2515, HTSUS, which provides for, among other things, “marble, crude or roughly trimmed.”

In your March 15, 2005 supplemental submission to the NCSD, you allege that 4 of the 5 products are not subjected “to any process that removes them from the ambit of Chapter 25” and allege that the stones are arranged on the netting only for purposes of transportation or holding “ingredients together.”

In your March 23, 2005 supplemental submission to the NCSD, you allege that crude pebbles and stones randomly arranged on polypropylene netting retain their crude nature and should be classified in Chapter 25. You argue, citing Winter-Wolff, Inc. v. United States, 22 C.I.T. 70, 996 F. Supp. 1258 (1998), that the stones glued to the netting are not “further worked” as that term was defined by the Court of International Trade therein.

In your June 7, 2005 supplemental submission to the NCSD, you contend, “in the event the determination that the stones have been advanced beyond a Chapter 25 form,” that the 7 centimeter dimensional requirement contained in subheading 6802.10, HTSUS (set forth below), applies to individual mosaic cubes and the like rather than the netted products in their entirety. You further contend that the grey granite paving stones are classifiable under heading 6801, HTSUS, set forth below.

In response to the representations made in the original submission concerning the amount of processing to which the stones were subjected and the June 7 supplemental submission concerning the size of the individual stones vis-à-vis subheading 6802.10, HTSUS, all five of the products were sent to the U.S. Customs and Border Protection (“CBP”) laboratory for analysis; four were reanalyzed in order to determine stone size as it pertains to the seven centimeter side criterion contained in subheading 6802.10, HTSUS (set forth below).

CBP laboratory report number NY20050324S, dated April 28, 2005 (which is supplemental to report number NY20050324, dated April 21, 2005) analyzed the mosaic river stones (quartzite). The report states, in pertinent part, that:

The sample, designated “mosaic pebble stones,” consists of rounded, shiny, flat stones . . . glued to a mesh backing. In our opinion the surface of a stone tumbled in a river or stream is smooth but not shiny. The pebbles have been polished. Laboratory analysis indicates that they are of non-agglomerated quartz.

The largest stone measures 5.5 cm at its greatest dimension and the surface is capable of being enclosed in a square the side of which is less than 7 cm.

CBP laboratory report number NY20050325S, dated April 28, 2005 (which is supplemental to report number NY20050325, dated April 21, 2005) analyzed the mosaic stones – red sandstone. The report states, in pertinent part, that:

The sample, designated mosaic stones, consists of reddish brown stones with irregular, broken sides and rounded edges glued to a mesh backing. The surfaces appear flat but microscopic examination reveals that they are uneven. The laboratory broke one of the stones with a hammer and the freshly broken edge was sharper than any other edge on the stone, suggesting that the edges have been worked to round them. Laboratory analysis indicates that the stones are of non-agglomerated sandstone.

The largest stone measures 8.9 cm at its greatest dimension and the surface is not capable of being enclosed in a square the side of which is less than 7 cm.

CBP laboratory report number NY20050326S, dated April 28, 2005 (which is supplemental to report number NY20050326, dated April 21, 2005) analyzed the mosaic stones – grey granite. The report states, in pertinent part, that:

The sample consists of stones glued to a mesh backing. The individual stones are irregular in shape. The laboratory broke one of the stones with a hammer and the freshly broken edge is sharper than the edges present on the sample. This suggests that the edges have been worked to round them off.

Laboratory analysis indicates that the stones are of non-agglomerated, non-calcareous other stone.

The largest surface is capable of being enclosed in a square the side of which is less than 7 cm.

CBP laboratory report number NY20050327S, dated April 28, 2005 (which is supplemental to report number NY 20050327, dated April 21, 2005) analyzed the mosaic stones – white marble. The report states, in pertinent part, that:

The sample consists of stones glued to a mesh backing. The individual stones are irregular in shape. The bottoms of the stones, attached to the mesh, are flat. The tops of the stones appear flat to the eye but on magnification it can be seen that the surface is rough. Some of the stones have evidence of saw marks. Some of the stones have one or more flat sides. The laboratory broke one of the stones with a hammer and the freshly broken edge is sharper than the edges present on the sample. This suggests that the edges have been worked to round them off. Laboratory analysis has determined that the sample is a non-agglomerated, calcareous rock. It is a marble whose major constituent is the mineral dolomite.

The largest surface is not capable of being enclosed in a square the side of which is less than 7 cm.

CBP laboratory report number NY20050323, dated April 21, 2005 analyzed the natural granite garden paver stones. The report states, in pertinent part, that:

The sample, designated “natural granite garden paver stones,” is a broken . . . mottled flat stone piece. It has flat, even sides, a smooth, flat, even bottom surface and a flame-textured top surface. The edges are not beveled or rounded. It is composed of non-agglomerated minerals. Laboratory analysis indicates that it is of granite.

In your October 5, 2005, supplemental submission, you reiterate your previous contentions concerning the 7 cm requirement set forth in subheading 6802.10, HTSUS (set forth below), stating that the netted stones at issue are “tiles” for tariff classification purposes.

ISSUE:

What is the tariff classification of the five stone products?

LAW and ANALYSIS:

Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Classification
under the HTSUSA is guided by the General Rules of Interpretation of the Harmonized System (“GRIs”). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The HTSUSA provisions under consideration are as follows:

2515 Marble, travertine and other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more, and alabaster, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape:
Marble and travertine:
2515.11.00 Crude or roughly trimmed:
2515.12 Merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape: 2515.12.10 Marble.
2516 Granite, porphyry, basalt, sandstone and other monumental or building stone, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape: Granite:
2516.11.00 Crude or roughly trimmed:
2516.12.00 Merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape: Sandstone:
2516.21.00 Crude or roughly trimmed.
2517 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; macadam of slag, dross or similar industrial waste, whether or not incorporating the materials cited in the first part of the heading; tarred macadam; granules, chippings and powder, of stones of heading 2515 or 2516, whether or not heat-treated: 2517.10.00 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: Granules, chippings and powder, of stones of heading 2515 or 2516, whether or not heat-treated: 2517.41.00 Of marble.
Setts, curbstones and flagstones, of natural stone (except slate). 6802 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): 6802.10.00 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, chippings and powder:

Other monumental or building stone and articles thereof, simply cut or
sawn, with a flat or even surface:
Marble, travertine and alabaster:
Other:
Marble, travertine and alabaster:
Marble:

6802.91.15 Other:
6802.92 Other calcareous stone:

6802.93 Granite.
6802.99 Other stone.

The products at issue, except for the granite stone, are prima facie classifiable under two separate headings: an appropriate heading in either of the stone chapters (chapter 25 or 68, depending on the extent to which the stones have been worked) and, given the polypropylene mesh or netting, either chapter 39, which provides for plastics, or, in one of the textiles chapters under the appropriate heading for mesh or netting of man made fibers. See Headquarters Ruling Letters (“HQ”) 083117, dated March 16, 1990 and HQ 967325, dated November 4, 2004. In any event (i.e., regardless of the degree of working), the products comprised of stone affixed to mesh are composite goods and are not classifiable at GRI 1. Resort must be made to the remaining GRIs.

GRI 3(b) provides that “composite goods consisting of different materials or made up of different components . . . shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”

Both you and your client in its original submission contend that the stones are glued to the plastic mesh for either transportation purposes or holding the individual stones together (see your March 15, 2005 supplemental submission). You both contend that the composite articles will be used in the yard or garden – the product is placed in the ground and covered with earth leaving only the stones visible for use as a sort of stepping stone. (We conclude that the fact that the netting remains attached to the stones when placed in the ground obviates the transportation contention; the netting is intended to remain as a component long after the article is imported.) While the plastic netting fulfills the function of holding the stones in their place, we consider this to be an ancillary function. Only the stones remain visible in this intended application. The arrangement of stones is both decorative and functional; the arrangement is pleasing to the eye and the observer can walk on the decorative stones.

We conclude, with regard to the four composite articles at issue, that the stones impart the essential character to the articles. While the mesh holds the stones in place and facilitates the positioning of the articles in the ground or garden, the stones predominate in bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. See EN (VIII) to GRI

3(b). Therefore we conclude that the stones impart the essential character to the composite articles at issue.

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The Notes to Chapter 25 provide, in pertinent part, that:

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.

The ENs to Chapter 25 provide, in pertinent part, as follows:

2.- This Chapter does not cover:
(e) Setts, curbstones or flagstones (heading 68.01); mosaic cubes or the like (heading 68.02); roofing, facing or damp course slates (heading 68.03);

The ENs to heading 6801, HTSUS, provide, in pertinent part, as follows: The products of this heading are obtained by splitting, rough hewing or shaping quarrystone, by hand or machine. Setts and flagstones usually have rectangular (including square) faces, but whereas flagstones are thin in relation to their length and width, setts are roughly cubical or take the form of truncated pyramids. Curbstones may be straight or curved; they are normally of rectangular (other than square) cross-section.

The heading includes stone in shapes identifiable as setts, curbstones or flagstones, even if obtained simply by splitting, sawing or roughly squaring; it also covers those which have been dressed, bushed, sand dressed, ground, rounded at the edges, chamfered, tenoned and mortised or specially worked for particular road uses (curbstones shaped to allow for road drainage or garage exits).

The ENs to heading 6802, HTSUS, provide, in pertinent part, as follows:

This heading covers natural monumental or building stone (except slate) which has been worked beyond the stage of the normal quarry products of Chapter 25. There are, however, certain exceptions where goods are covered more specifically by other headings of the Nomenclature and examples of these are given at the end of this Explanatory Note and in the General Note to the Chapter.

The heading therefore covers stone which has been further processed than mere shaping into blocks, sheets or slabs by splitting, roughly cutting or squaring, or squaring by sawing (square or rectangular faces). The heading thus covers stone in the forms produced by the stone-mason, sculptor, etc., viz: (B) Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a “rock faced” finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc. The heading also covers small, prepared mosaic cubes and the like of marble, etc., for various floor or wall coverings, etc., whether or not backed with paper or other materials. It further includes artificially coloured granules, chippings and powder of marble or of other natural stones (including slate) (e.g., for shop window displays), but untreated pebbles, granules, chippings and coloured natural sands fall in Chapter 25.

The stones glued to the plastic mesh are not in a “crude” state as contemplated by Chapter 25. Rather, they are the primary component (i.e., they impart the essential character) of a composite article. We conclude that the fact that the stones are securely fixed to the plastic backing is a sufficient amount of working as to remove them from the ambit of Chapter 25. (In this regard, we find your reliance upon Winter-Wolff, Inc. v. United States, 22 C.I.T. 70, 996 F. Supp. 1258 (1998) to be misplaced; “since neither the language of tariff heading 7607 nor the Chapter or Section Notes define "further worked" (Winter-Wolff, 22 CIT at 74, 996 F. Supp at 1261-2), the CIT resorted to extrinsic aids to fashion a definition of the term. Given the exemplars in the headings, section and chapter notes of chapters 25 and 68 that set forth the types and degrees of working contemplated by the respective chapters, no such exercise is necessary here.) Further, the CBP laboratory reports conclude with regard to each of the composite goods in question that the stones glued to the plastic mesh have been worked to a degree greater than that delineated within Chapter 25. Similarly, with
regard to the paver stone, the CBP lab found that that article too had been worked beyond the degree delineated within Chapter 25. Given these unrefuted findings, we conclude that none of the composite articles can be classified within Chapter 25. Therefore, the articles will be classified under the appropriate headings within Chapter 68.

We do not consider the subject articles to be mosaic cubes under subheading 6802.10, HTSUS. Although the unrefuted findings of the CBP lab is that the stones at issue have been worked, they bear no resemblance to a mosaic in that they are merely arranged (“aggregated” in your client’s words) and glued to plastic mesh. The aggregate does not depict any design or image; it is merely an arrangement of stones. Cf. HQ 965778, dated September 20, 2002, which classified small, prepared mosaic cubes, arranged in a decorative pattern, under subheading 6802.10.00, HTSUS. The articles at issue are not mosaic.

Similarly, given the composite nature of the netted stones, we find your arguments that the articles are “tiles” for tariff purposes to be unpersuasive.

The paver stone by description and appearance is similar to merchandise described as granite paving stones and classified under heading 6801.00.0000, HTSUSA in HQ 962228, dated July 6, 1999. The paver stone at issue will be similarly classified.

HOLDING:

The mosaic river pebble stones, the red sandstone and the “grey granite” stones glued to mesh are classified under subheading 6802.99.0000, HTSUSA, 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): other: other stone. The 2005 general, column rate of duty is 6.5% ad valorem.

The white marble composite article is classified under subheading 6802. 91.1500, HTSUSA, 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): other: marble, travertine and alabaster: marble: other. The 2005 general, column rate of duty is 4.9% ad valorem.

The natural granite garden paver stone is classified under subheading 6801.00.0000, HTSUSA, which provides setts, curbstones and flagstones, of natural stone (except slate). The 2005 general, column rate of duty is 2.5% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Sincerely,

Myles B. Harmon, Director

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See also:

• Tariff No.: 2515.11.00 - Marble and travertine, crude or roughly trimmed
• Tariff No.: 2515.12.10 - Marble, merely cut into blocks or slabs of a rectangular (including square) shape
• Tariff No.: 2516.11.00 - Granite, crude or roughly trimmed
• Tariff No.: 2516.12.00 - Granite, merely cut into blocks or slabs of a rectangular (including square) shape
• Tariff No.: 2516.21.00 - Sandstone, crude or roughly trimmed
• Tariff No.: 2517.10.00 - Pebbles, gravel, broken or crushed stones, for concrete aggregates, road metalling, ballast, shingle or flint, whether o/not heat-treated
• Tariff No.: 2517.41.00 - Granules, chippings and powder of marble, whether or not heat-treated
• Tariff No.: 6801.00.00 - Setts, curbstones and flagstones, of natural stone (except slate)
• Tariff No.: 6802.10.00 - Tiles/cubes/similar arts. of natural stone, enclosable in a sq. w/a side less than 7 cm; artificially colored granules, chippings & powder
• Tariff No.: 6802.91.15 - Monumental or building stone & arts. thereof (o/than slabs), of marble, further worked than simply cut/sawn, nesoi
• Tariff No.: 6802.93.00 - Monumental or building stone & arts. thereof, of granite, further worked than simply cut/sawn, nesoi
• Tariff No.: 6802.99.00 - Monumental or building stone & arts. thereof, nesoi, further worked than simply cut/sawn, nesoi