March 30 2015
CLA-2 OT: RR: CTF: TCM H255095 ERB
Port Director, Los Angeles - Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
Attn: Dave Shaw, Supervisory Import Specialist
RE: Further Review of Protest Number 2704-10-101527; marble table tops
Dear Port Director:
This is in response to the Application for Further Review (AFR) of Protest Number 2704-10-101527, dated July 28, 2010, filed by Livingston International Inc., on behalf of its client, Knoll, Inc. (Knoll). The AFR concerns U.S. Customs and Border Protection’s (CBP) classification of one entry of marble table tops under the Harmonized Tariff Schedule of the United States (HTSUS). No samples were submitted for inspection, but photographs and descriptions of the subject merchandise were considered.
The single entry at issue here entered the United States on December 13, 2009, under subheading 6802.21.50, 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): Other monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface: Marble, travertine and alabaster: Other.” CBP liquidated the entry on January 29, 2010 under subheading 6802.91.15, HTSUS, which provides for, “Worked monumental or building stone…: Other: Marble, travertine and alabaster: Marble: Other.”
Knoll filed its protest on July 28, 2010 and CBP denied Knoll’s protest as well as its AFR in full on September 15, 2010, based on Headquarters Ruling (HQ) 960511. Knoll subsequently filed a request to set aside the denial of the AFR, and CBP granted this request on November 12, 2010.
The subject merchandise is two models (the D’Urso Collection and the Saarien Collection) of finished marble table tops in varying dimensions which have been polished and feature beveled sides. The table tops also have a protective polyester coating applied to the top and a polyester mesh applied to the underside for added strength. Depending on the model, the underside of the table top is prepared by one of the following methods so that it can be attached to the furniture base: for the D’Urso Collection, wood locating blocks are glued to the underside of the table, and for the Saarien Collection, holes are drilled into the underside of the top and implanted with threaded metal inserts. Attachment to the furniture base (legs or pedestal, depending on the model) is completed post-importation.
Whether the subject marble table tops are classified as “worked monumental or building stone” under heading 6802, HTSUS, or whether they are classified as parts of furniture, under heading 9403, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a), as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429 §2103(2)(B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest No. 2704-10-101527 is properly accorded to the Protestant pursuant to 19 C.F.R. §174.24(a), because the AFR alleges that the tariff classification indicated by Customs was inconsistent with a ruling or decision involving substantially similar merchandise. Specifically, Knoll directs attention to New York Ruling (NY) N012869, dated June 20, 2007. Further Review of this protest is also properly accorded to the Protestant pursuant to §174.24(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts, but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 2009 HTSUS subheadings under consideration are the following:
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):
6802.91 Other: Marble, travertine and alabaster:
9403 Other furniture and parts thereof:
Note 1(k) to Chapter 68 provides as follows:
This chapter does not cover:
(k) Articles of chapter 94 (for example, furniture, lamps, and lighting fittings, …).
Note 3(a) to Chapter 94, provides as follows:
In headings 9401 to 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 68.02 provides in relevant part:
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).
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.
The General EN to chapter 94 provides in relevant part:
This chapter covers, subject to the exclusions listed in the Explanatory Notes to this Chapter:
All furniture and parts thereof (headings 94.01 to 94.03).
Articles of furniture presented disassembled or unassembled are to be treated as assembled articles of furniture, provided the parts are presented together. This applies whether or not the furniture incorporates sheets, fittings or other parts of glass, marble or other materials (e.g., a wooden table with a glass top, a wooden wardrobe with a mirror, a sideboard with a marble top).
To assist in understanding Note 3(a) to Chapter 94, above, the EN to Chapter 94, “Parts” states:
This chapter only covers parts, whether or not in the rough, of the goods of heading 94.01 to 94.03 and 94.05, when identifiable by their shape or other specific features as parts designed solely or principally for an article of those headings. They are classified in this Chapter when not more specifically covered elsewhere.
In addition to the exclusions referred to in the individual Explanatory Notes below, this Chapter also excludes:
(c) Sheets of glass (including mirrors), marble or other stone or of any other 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).
Analysis of merchandise that professes to be furniture of chapter 94, but which includes an article of chapter 68 necessarily involves a careful reading of the relevant section and chapter notes in their entirety, and in the context of one another. Note 3(a) to chapter 94 provides that references in the relevant headings to parts of goods do not include references to slabs of marble of chapter 68. The purpose of this note is to exclude from classification as parts any material referred to in Chapters 68 or 69 when the sheets or slabs of material are not combined with other parts that dictate its use as a furniture top. See Note 1(k) to chapter 68 which prohibits classification of furniture therein, and see Note 3(a) to chapter 94.
To assist further the understanding of this note, the EN to chapter 94, subsection “Parts” states that sheets of marble remain classified in chapter 68, unless they are combined with other parts which clearly identify them as parts of furniture (e.g., a mirror-door for a wardrobe). See EN to Chapter 94 subsection (c). Thus, for the subject marble table tops to fall within the relevant provision for furniture, it must be shown that the tops were not only cut to shape, but were also combined with other parts which clearly identify them as finished pieces of furniture. If they do not meet this threshold, then the stone remains classified in chapter 68, provided that the various dimensions comport with Additional U.S. Note 1 to chapter 68.
Production processes in Italy includes both models being cut to their final shape as the top of a finished table. They feature beveled edges. A polyester mesh coating is applied to the top and underside of each model to ensure added strength to the sheet. Then, the top is prepared in one of two ways depending on the model of the table: wood locating blocks are glued to the underside of a D’Urso collection table top, or threaded metal inserts are drilled into the underside of the Saarien collection table top. Schematics of each collection (Exhibits A through D), were provided with Knoll’s submission and they depict instructions for post-importation assembly. The wood locating blocks and the threaded metal inserts are visible, and it is evident that these components will become permanent parts of the finished table. The plain language of Note 3 to chapter 94 does not necessitate the additional parts to satisfy any further requirements. They may be small as long as they clearly identify the marble as a part of furniture. They need only be combined with the table tops and used in the manufacture of completed tables. See N012869, dated June 20, 2007, (classifying a marble table tops with a dresser top with pre-drilled holes in it). The subject wooden blocks and threaded metal inserts “clearly identifies [it] as parts of furniture,” because the pieces will become a permanent part of the finished table once fully assembled. Further, the tops cannot be used in another capacity because of the modifications made to the underside of the sheet. See EN 94.03, whereby the tops of articles of furniture are classified in chapter 94 if presented with the pieces of furniture, clearly intended to be parts thereof. The instant case is thus distinguishable from the circumstances presented to Customs in HQ 960511, dated December 12, 1997, whereby nothing other than the granite table tops were imported. Hence, it is not relevant here.
The subject finished marble table tops are combined with other parts of the finished table, namely, wood locating blocks and metal threaded inserts. They are considered parts of furniture for tariff purposes, when, as here, they are imported together for assembly post-importation. As such, the subject merchandise is classified in heading 9403, HTSUS.
By application of GRI 1, the subject merchandise is classified in heading 9403, HTSUS. Specifically, it is provided for in subheading, 9403.90.80, HTSUS, which provides for, “Other furniture and parts thereof: Parts: Other.” The column one rate of duty is free.
You are instructed to GRANT the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division