CLA-2 RR:CR:GC 959599 MMC
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