CLA-2-68:OT:RR:NC:N2:226
Mr. Phil D’Ascanio
Artex Systems, Inc.
PO Box 149
523 Bowes Road
Concord, Ontario
Canada L4K 1B2
RE: The tariff classification, country of origin and NAFTA status of panels consisting of German
and American stone on a backing of Canadian concrete
Dear Mr. D’Ascanio:
In your letter dated October 25, 2010, you requested a ruling regarding the classification, country of origin
and NAFTA status of stone/concrete panels (Job A09-1048).
Samples of the stones comprising these panels were submitted with your ruling request. These samples were
submitted to our Customs and Border Protection Laboratory for analysis. Our laboratory has now completed
its analysis.
You advised our office that some panels consist exclusively of “Jura Limestone” from Germany on a
backing of concrete from Canada. You stated that most of the panels consist of “Jura Limestone” from
Germany and “Cleft Green Slate” from the United States on a backing of concrete from Canada.
For those products which consist of both “Jura Limestone” and “Cleft Green Slate” on a backing of concrete,
you stated that the “Jura Limestone” is the predominant material on the face of each panel. The main
visual effect of each article is imparted by the “Jura Limestone.” You stated that this stone comprises
seventy-three to one hundred percent of the facial area of each panel in Job A09-1048.
For those panels which consist exclusively of “Jura Limestone” on a backing of concrete, the essential
character of each article is imparted by the “Jura Limestone” component, not the concrete backing.
The essential character of each panel which includes both “Jura Limestone” and “Cleft Green Slate” on a
backing of concrete is imparted by the “Jura Limestone” component, not the “Cleft Green Slate” and not
the concrete backing.
Our laboratory has determined that the “Jura Limestone” is limestone capable of taking a polish and the
“Cleft Green Slate” is slate.
In accordance with a court case, the tariff provision for marble in subheading 6802.91, Harmonized Tariff
Schedule of the United States (HTSUS) includes limestone capable of taking a polish. Note
Intercontinental Marble Corp. v. United States, U.S. Court of Appeals for the Federal Circuit, 03-1555,
08-25-04.
Since the “Jura Limestone” is limestone capable of taking a polish, it will be regarded as marble of
subheading 6802.91. Since this component imparts the essential character of each article (those consisting of
“Jura Limestone” on a backing of concrete, as well as those consisting both “Jura Limestone” and “Cleft
Green Slate” on a backing of concrete), the applicable provision for each panel will be 6802.91, HTSUS.
For those panels which consist exclusively of limestone capable of taking a polish on a backing of concrete,
the applicable subheading will be 6802.91.1500, HTSUS, which provides for worked monumental or
building stone…and articles thereof…other: marble, travertine and alabaster: marble: other. The rate of
duty will be 4.9 percent ad valorem.
For those panels which consist predominantly of limestone capable of taking a polish plus a smaller amount
of slate on a backing of concrete, the applicable subheading will also be 6802.91.1500, HTSUS, which
provides for worked monumental or building stone…and articles thereof…other: marble, travertine and
alabaster: marble: other. The rate of duty will be 4.9 percent 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 World Wide Web at http://www.usitc.gov/tata/hts/.
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the North American Free Trade Agreement (NAFTA).
Each of the panels consists of a component or components produced in a NAFTA country as well as a component produced in a non-NAFTA country. In this situation, according to General Note 12(b), HTSUS, (19 U.S.C. § 1202), “…goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as ‘goods originating in the territory of a NAFTA party’ only if…(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that-- (A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein…”
These panels do not qualify for preferential treatment under the NAFTA because the merchandise fails to meet the required tariff shift specified in General Note 12(t) of the HTSUS.
If a product of heading 6802 consists of components produced in both non-NAFTA and NAFTA countries, the article would be eligible for NAFTA treatment only if a tariff shift from another chapter takes place in the NAFTA country. In this case, the merchandise begins as German limestone capable of taking a polish classifiable as marble in subheading 6802.91, HTSUS. When a concrete backing is added in Canada, the finished product is also classifiable in subheading 6802.91, HTSUS. In the same manner, when a smaller amount of American slate is added to the face of the product which consists predominantly of German limestone capable of taking a polish (and a backing of Canadian concrete is added), the finished product is still classifiable in subheading 6802.91, HTSUS. A tariff shift from another chapter clearly has not taken place in either case. Therefore, none of the panels are eligible for preferential treatment under the NAFTA. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
The country of origin marking requirements for a “good of a NAFTA country” are also determined in accordance with Annex 311 of the North American Free Trade Agreement (“NAFTA”), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations.
The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations. Section 134.1(b) of the regulations defines “country of origin” as the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the “country of origin” within this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. Section 134.1(j) of the regulations provides that the “NAFTA Marking Rules” are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations defines a “good of a NAFTA country” as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Rules. Section 134.45(a)(2) of the regulations provides that a “good of a NAFTA country” may be marked with the name of the country of origin in English, French or Spanish. Part 102 of the regulations sets forth the “NAFTA Marking Rules” for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported panel consisting of German limestone capable of taking a polish on a background of
Canadian concrete is a good of Germany for marking purposes.
In the same manner, applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported panel consisting predominantly of German limestone capable of taking a polish plus a smaller amount of American slate on a background of Canadian concrete is a good of Germany for marking purposes.
Under Part 102.20 of the Customs Regulations, a tariff shift to heading 6802 for purposes of determining country of origin will only take place if there is a change from another heading. The merchandise at issue begins as German limestone capable of taking a polish, an item classifiable as marble in subheading 6802.91, HTSUS. In one scenario, this limestone capable of taking a polish is placed on a base of Canadian concrete to form the finished panel which is also classifiable as marble in subheading 6802.91. In another scenario, the German limestone capable of taking a polish plus a smaller amount of American slate is placed on a base of Canadian concrete to form the finished panel which is also classifiable as marble in subheading 6802.91. In both cases, there has been no change from another heading.
Under Section 102.11 (b) of the Customs Regulations, the country of origin of this merchandise is the country of origin of the single material which imparts the essential character of the good. The essential character of the panel consisting of German limestone capable of taking a polish on a base of Canadian concrete is imparted by the limestone capable of taking a polish (marble). The essential character of the panel consisting of German limestone capable of taking a polish plus a smaller amount of American slate on a base of Canadian concrete is imparted by the limestone capable of taking a polish (marble). Since the country of origin of the limestone capable of taking a polish (marble) is Germany, the country of origin of each panel is Germany.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Jacob Bunin at 646-733-3027.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division