CLA-2 RR:CR:GC 960511 PH

Port Director
U.S. Customs Service
C/O Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-97-101614; other granite; table tops; parts of furniture; slabs; sheets; Note 3(a), Chapter 94; Additional U.S. Note 1, Chapter 68; ENs 68.02; 94.01; HQs 084608; 085410

Dear Port Director:

This is in response to Protest 1001-97-101614, which pertains to the tariff classification of granite table tops under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of 50 granite polished table tops. The dimensions are 313 centimeters X 150 or 158 cemtimeters, and the table tops are 2 centimeters thick.

One entry dated June 9, 1996, is included in the protest. Claimed classification by the importer for the table tops was subheading 9403.80.60, HTSUS. The entries were liquidated on December 13, 1996, with classification under subheading 6802.93.00, HTSUS.

On February 27, 1997, the importer, through its broker, filed the protest. The protestant argues that the merchandise is "specifically made as table tops and should be classified ... as parts of furniture." The protestant contends that there is a contradiction between the provision in Chapter 94 providing that references to parts of goods in heading 9401 or 9403 do not include references to sheets or slabs of glass, marble or other stone or any other material referred to in Chapter 68 or 69 and the definition in Additional U.S. Note 1 to Chapter 68, HTSUS, of "slabs." On the basis of that definition, the protestant contends that "... granite table tops which have been imported specifically for use with tables [with] rounded or beveled edges ... cannot be classified under [C]hapter #68." The protestant claims that the correct classification for the merchandise is as originally classified, in Chapter 94, HTSUS.

The competing subheadings, as of the time under consideration, are as follows:

6802.93.00 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: Granite.

The 1996 general column one rate of duty for goods classifiable under this subheading is 4% ad valorem.

9403.80.60: Other furniture and parts thereof: ... Furniture of other materials, including cane, osier, bamboo or similar materials: ... Other.

The 1996 general column one rate of duty for goods classifiable under this subheading is 2.4% ad valorem.

9403.90.80: Other furniture and parts thereof: ... Parts: ... Other: ... Other.

The 1996 general column one rate of duty for goods classifiable under this subheading is 2.4% ad valorem.

ISSUE:

Are the granite table tops classified as other granite in subheading 6802.93.00, HTSUS, furniture of other materials in subheading 9403.80.60, HTSUS, or other parts of furniture in subheading 9403.90.80, HTSUS?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

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 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 under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

Note 3(a), Chapter 94, HTSUS, provides that:

In headings 9401 and 9403 references to parts of goods do not include references to sheets or slabs (whether or not cut to shape but not combined with other parts) of glass (including mirrors), marble or other stone or of any other material referred to in chapter 68 or 69.

Additional U.S. Note 1, Chapter 68, HTSUS, provides that:

For the purposes of heading 6802, the term "slabs" embraces flat stone pieces, not over 5.1 cm in thickness, having a facial area of 25.82 cm2 or more, the edges of which have not been beveled, rounded or otherwise processed except such processing as may be needed to facilitate installation as tiling or veneering in building construction.

On the basis of these provisions, the protestant contends that a table top of granite which does not meet the definition of "slab" in Additional U.S. Note 1 because the edges have been beveled, rounded or otherwise processed as described is not excluded from heading 9403 by Note 3(a), Chapter 94. That is, the protestant argues that such table tops are not included in "references to ... slabs ... of ... marble or other stone ... referred to in chapter 68 ...."

We disagree (see, e.g., ruling HQ 084608 dated August 24, 1989). The only reference to "slabs" in heading 6802 is in subheading 6802.91.05, in which other marble in the form of "slabs" is distinguished from other marble in other forms. The purpose of Additional U.S. Note 1, Chapter 68, is clearly to distinguish between marble in subheadings 6802.91.05 and 6802.91.15 on the basis of the degree of working or processing to which the articles have been subjected. See ruling HQ 085410 dated January 4, 1990. The purpose of Note 3(a), Chapter 94, is to exclude from classification as parts in headings 9401 and 9403 sheets or slabs of any material referred to in Chapter 68 or 69 when the sheets or slabs of material are not combined with other parts. See EN 94.01 which states:

[T]his Chapter also excludes ... [s]heets of glass (including mirrors), marble or other stone or of any material referred to in Chapter 68 or 69, whether or not cut to shape, unless they are combined with other parts which clearly identify them as parts of furniture (e.g., a mirror-door for a wardrobe). [Emphasis in original.]

The EN for heading 6802 (EN 68.02) clearly makes the same exclusion. According to EN 68.02:

Stone slabs forming the tops of articles of furniture (sideboards, washstands, tables, etc.) Are classified in Chapter 94 if presented with the pieces of furniture (whether or not assembled) and clearly intended as parts thereof, but such furniture tops presented separately remain in this heading [i.e., heading 68]. [Emphasis in original.]

The interpretation proposed by the protestant would defeat the purpose of Note 3(a), Chapter 94, for any table top the edges of which were beveled, rounded, or otherwise processed to a degree beyond that needed to facilitate installation. Further, this interpretation ignores the fact that Note 3(a), Chapter 94, excludes from heading 9403 "sheets or slabs" of the identified material, not only "slabs." See Random House Dictionary of the English Language (1973), at 1313, defining "sheet" as, among other definitions, "a relatively thin, usually rectangular form, piece, plate, or slab, as of photographic film, glass, metal, etc." That the restrictive interpretation proposed by the protestant is incorrect is further supported by EN 94.01, quoted above, which describes the exclusion from Chapter 94 in Note 3(a) as applying to "[s]heets of glass ... marble or other stone ..." (emphasis added). That is, the EN does not even refer to slabs, making it clear that whether or not the edges of the sheets of material have been beveled, rounded, or otherwise processed is irrelevant for purposes of Note 3(a), Chapter 94. Further, EN 68.02, quoted above, very clearly precludes the interpretation proposed by the protestant.

Classification under heading 9403 of the granite table tops, not combined with any other part, is precluded by Note 3(a), Chapter 94 (see also ENs 94.01 and 68.02). The table tops are classifiable as other granite, in subheading 6802.93.00, HTSUS.

HOLDING:

The granite table tops are classified as other granite in subheading 6802.93.00, HTSUS (Note 3(a), Chapter 94, HTSUS).

The protest is DENIED. 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, with the Customs Form 19, 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, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director,
Commercial Rulings Division