Tariff classification of prefabricated structural components

HQ H312140 August 12, 2022 OT:RR:CTF:CPMMA H312140 ACA CATEGORY: Classification TARIFF NO: 3916.90.50; 3925.90.00 Mr. William J. Maloney Sandler, Travis & Rosenberg, P.A. 551 Fifth Avenue, Suite 1100 New York, NY 10176 RE: Tariff classification of prefabricated structural components Dear Mr. Maloney: This is in response to your request, dated December 4, 2019, on behalf of Renco USA, Inc., for a binding ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of four prefabricated structural components. In addition to your ruling request, we have considered the arguments you presented in a teleconference call with the National Commodity Specialist Division (NCSD) on May 22, 2020 and the samples of the subject merchandise that you provided. FACTS: The merchandise at issue are identified as four types of prefabricated structural components: Joist, Decking, Block and Joist Receiver. The Joist is a prefabricated structure component that is designed to sit directly on the Joist Receiver and under the Decking. It is manufactured in three cross-sectional sizes that can be cut to any length required, all in centimeters: 6 x 35 x length, 6 x 30 x length, and 6 x 20 x length. The requestor claims that the Joist is comprised of 77 percent resin, 22 percent calcite from natural stone, and a small amount of peroxide. However, we sent a sample of the Joist to our Laboratories and Scientific Services Division (LSSD), and in Lab Report No. NY20200001S, dated April 20, 2020, they confirmed that the Joist is actually comprised of 51 percent fiberglass, 40 percent organic content found to be poly (1,2-Butylene isophthalate) and poly (propylene isophthalate), and 9 percent stone. The Decking is a prefabricated structure component that is designed to sit on top of the Joist. It is manufactured in three cross-sectional sizes that can be cut to any length required, all in centimeters: 10 x 3.8 x length, 20 x 3.8 x length, and 60 x 3.8 x length. The requestor claims that the Decking is comprised of 77 percent resin, 22 percent calcite from natural stone, and a small amount of peroxide. However, in Lab Report No. NY20200003S, dated April 27, 2020, LSSD confirmed that the Decking is actually comprised of 52 percent fiberglass, 37 percent organic content of styrene copolymer and styrene acrylate, and 11 percent stone. The Block is a prefabricated structure that is designed to interlock with other Blocks. Each Block has 4 cm male protrusions on the top and corresponding recesses on the bottom. It is manufactured in various sizes, all in centimeters: 10 x 10 x 20, 10 x 20 x 10, 10 x 20 x 20, 10 x 20 x 40, 10 x 20 x 120, 20 x 20 x 20, 20 x 20 x 30, 20 x 20 x 40, 20 x 20 x 80, 20 x 20 x 120, and 25 x 20 x 30. The requestor claims that the Block is comprised of 25-35 percent calcite obtained from natural stone, 30-45 percent polyester resin, and the balance consisting of glass fiber strands and other materials. However, in Lab Report No. NY20191906S, dated April 13, 2020, LSSD confirmed that the Block is actually comprised of 58 percent inorganic material consisting of calcium carbonate (calcite) and randomly oriented glass fibers. In addition to the inorganic material, the Block includes an epoxy curing agent. The Joist Receiver is a prefabricated structure that measures 10 cm x 5 cm x 40 cm and has a 2 cm male protrusion on the top. The requestor claims that the Block is comprised of 25-35 percent calcite obtained from natural stone, 30-45 percent polyester resin, and the balance consisting of glass fiber strands and other materials. However, in Lab Report No. NY20200002S, dated April 27, 2020, LSSD confirmed that the Joist Receiver is actually comprised of 61 percent inorganic matter consisting of calcium carbonate (calcite) and randomly oriented glass fibers. In addition to the inorganic material, the Joist Receiver includes an epoxy curing agent. ISSUE: Whether the instant prefabricated structural components are classified in heading 6810, HTSUS, as articles of artificial stone; in heading 3916, HTSUS, as monofilaments of plastics; or in heading 3925, HTSUS, as builders’ ware of plastics, not elsewhere specified or included. LAW AND ANALYSIS: Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. * * * The HTSUS provisions under consideration are as follows: 3916 Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics: 3925 Builders’ ware of plastics, not elsewhere specified or included: 6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced: * * * Note 11 to chapter 39 provides, in pertinent part: Heading 3925 applies only to the following articles, not being products covered by any of the earlier headings of subchapter II: … (b) Structural elements used, for example, in floors, walls or partitions, ceilings or roofs; … (d) Doors, windows and their frames and thresholds for doors; * * * The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The General EN to chapter 39 provides, in pertinent part: This Chapter also covers the following products, whether they have been obtained by a single operation or by a number of successive operations provided that they retain the essential character of articles of plastics: … (d) Products consisting of glass fibres or sheets of paper, impregnated with plastics and compressed together, provided they have a hard, rigid character. (If having more the character of paper or of articles of glass fibres they are classified in Chapter 48 or 70, as the case may be.) … In the case of plates or sheets composed of plies of wood and plastics, those in which the wood constitutes only a support or reinforcement of the plastics are classified in the present Chapter… * * * * EN 39.16 provides, in pertinent part: This heading covers monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks, and profile shapes. These are obtained in the length in a single operation (generally extrusion), and they have a constant or repetitive cross-section, from one end to the other. Hollow profile shapes have a cross-section different from that of tubes, pipes and hoses of heading 39.17 (see Note 8 to this Chapter). The heading also includes such products which have been merely cut to a length exceeding the maximum cross-sectional dimension or surface-worked (polished, matt-finished, etc.), but not otherwise worked. Profile shapes with an adhesive surface, used for sealing window frames, are classified in this heading. Products which have been cut down to the point where the length does not exceed the maximum cross-sectional dimension, or which have been otherwise worked (drilled, milled, assembled by glueing or sewing, etc.) are excluded from this heading. They are classified as articles in headings 39.18 to 39.26 unless they are more specifically covered by some other heading in the Nomenclature. EN 68.10 provides, in pertinent part: Artificial stone is an imitation of natural stone obtained by agglomerating pieces of natural stone or crushed or powdered natural stone (limestone, marble, granite, porphyry, serpentine, etc.) with lime or cement or other binders (e.g., plastics). Articles of artificial stone include those of “terrazzo”, “granito”, etc. * * * * In your request for a binding ruling, you argue that the subject merchandise should be classified in heading 6810, HTSUS, as artificial stone. Heading 6810, HTSUS, provides for “articles of cement, of concrete or of artificial stone,” where artificial stone is defined in EN 68.10 as “an imitation of natural stone obtained by agglomerating pieces of natural stone or crushed or powdered natural stone. . .with lime or cement or other binders (e.g., plastics).” It has long been CBP’s position that when a product that includes both plastics and stone contains an extremely low content of natural stone material, the product is precluded from classification as an article of artificial stone in heading 6810, HTSUS; instead, such merchandise is classified as a plastic of chapter 39, HTSUS. See, e.g., New York Ruling Letter (NY) N238938, dated March 26, 2013 (a wine bottle holder with an “overwhelming amount of polyresin plastic… with a negligible amount of stone powder” was classified in chapter 39, HTSUS); NY D85416, dated December 31, 1998 (an aquarium ornament composed of 70 percent polyresin and 30 percent inorganic calcium carbonate stone powder was classified in chapter 39, HTSUS); and NY K86150 dated July 22, 2004 (a doorstopper predominantly of plastic polymer with a small amount of calcium carbonate was classified in chapter 39, HTSUS). While not binding, the CBP Informed Compliance Publication (ICP) on Agglomerated Stone confirms CBP’s position, stating that “an article consisting of stone and plastics contain[ing] 20 percent or less of natural stone” will not be considered “agglomerated stone classifiable in heading 6810, HTSUS” but instead, “as plastics (containing filler) classifiable in chapter 39.” Customs case law states that “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Co. of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398, C.A.D. 1102 (1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91, 462 F. Supp. 378, 381-82, Cust. Dec. 4772 (1978) (citations omitted). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 60 C.C.P.A. at 151, 477 F.2d at 1399. In the instant matter, CBP’s LSSD laboratory reports analyzing the subject merchandise confirm that the Decking contains an average stone content of 11 percent, and the Joist contains an average stone content of 9 percent. Accordingly, two of the four subject merchandise at issue, the Decking and the Joist, each contain less than 20 percent average stone content. Therefore, based on longstanding CBP practice, the Decking and the Joist are excluded from classification in heading 6810, HTSUS. Turning to the Joist Receiver and the Block, CBP’s LSSD laboratory reports analyzing the merchandise confirmed that the Block contains a mixture of calcite and glass fibers comprising 58 percent of the product, while the Joist Receiver contains a mixture of calcite and glass fibers comprising 61 percent of the product. CBP has found that some products consisting of more than 20 percent stone may still be excluded from classification in heading 6810, HTSUS. See NY D85416, dated December 31, 1998 (an aquarium ornament of 30 percent inorganic calcium carbonate stone powder was classified in chapter 39, HTSUS); NY N213137, dated May 8, 2012 (“stone paper notebooks” were classified in chapter 39, HTSUS, despite a high percentage of calcium carbonate). Additionally, in Headquarters Ruling Letter (HQ) 955020, dated February 1, 1995), CBP conducted a drop test to determine whether a product made entirely of plastic sounded different than a product made of 25 percent stone and 75 percent polyester resin. There, CBP determined that the product made of 25 percent stone sounded more like stone when dropped on a hard surface compared to the product made entirely of plastic. Moreover, the ICP notes that when products consisting of stone and plastics contain between 21 and 30 percent natural stone by weight, such products may be considered agglomerated stone, “[d]epending on how heavy or light the item is and depending on whether or not it has a ‘stone-like’ feel...” as opposed to “the smooth feeling we experience” when touching a plastics article. In the instant matter, we analyzed samples of the Joist, Block, Joist Receiver, and Decking by performing a drop test of each sample, with a drop test of a piece of natural stone and a piece of agglomerated stone as controls. See HQ 955020. While the control samples of natural stone and agglomerated stone made a low, clunking sound when dropped, each sample of the Joist, Block, Joist Receiver, and Decking made a sharp, clattering sound completely unlike the sounds produced by the control samples. Moreover, the samples of the subject merchandise bounced off the surface when dropped, in a manner that neither the natural stone or agglomerated stone samples duplicated. We also note that all four samples are relatively light for their size compared to articles of artificial stone, and all submitted samples have the texture of plastic, rather than textures like the artificial or agglomerated stone samples. Further, on receipt of the samples, CBP noticed that part of the Block was cracked. Upon examination, we found that not only was the Block sample fairly translucent, but it was also easily breakable with little pressure. In an email dated April 29, 2020, LSSD described the subject merchandise as follows: All 4 of the submissions lack the characteristics of imitation stone. Stone imitation slabs can be cut and polished just like natural stone. Furthermore, when cut and polished, imitation stone holds the appearance of natural stone. However, all 4 submissions look like plastic and have fiberglass incorporated in them. These submissions cannot be polished because then the fibers become visible. With imitation stone, granules might be visible upon cutting and polishing, not fiberglass. Therefore, these submissions do not maintain the nature of stone. As noted above, LSSD confirms the Blocks and Joist Receivers do not maintain the characteristics of artificial stone to be classified as such in heading 6810, HTSUS. In addition to the foregoing, the subject merchandise can only be classified in heading 6810, HTSUS, if the natural stone and the binding material are uniformly agglomerated together throughout the body of the article. In determining whether a natural stone is “agglomerated” with the binder, the stone and binder must uniformly and consistently run throughout the body of the article together. See HQ H279842, dated October 3, 2017. Customs has consistently ruled that a “crucial factor in determining whether a natural stone is ‘agglomerated’ with non-material binder is the degree to which the former is uniformly interspersed among the latter.” See HQ 955020, dated February 1, 1995; HQ H279842, dated October 3, 2017; HQ 955392, dated May 16, 1994; HQ 956788, dated November 1, 1994. The ICP further supports this position, noting that one would consistently find both components blended together when cutting into agglomerated stone. Moreover, in LSSD’s analysis of the subject merchandise, they determined that all four of the samples were not uniformly agglomerated, as the fiberglass in each sample varies in appearance and is more concentrated in some parts of the sample compared to others. In sum, based on the above, all four subject merchandise are excluded from classification in heading 6810, HTSUS. Because the subject merchandise cannot be classified in heading 6810, HTSUS, we turn to chapter 39, HTSUS, to determine the appropriate heading. The General ENs to chapter 39 establish that products covered by this chapter include those “consisting of glass fibers or sheets of paper, impregnated with plastics and compressed together, provided they have a hard rigid character” and retain the essential character of articles of plastic. In accordance with prior CBP rulings, articles having a hard, rigid character may be considered as having the essential character of articles of plastic. In the instant matter, CBP’s LSSD laboratory reports confirmed that the non-stone materials of the Joist and Decking consist of a mixture of organic content and fiberglass. CBP’s LSSD laboratory reports also confirmed that, in addition to calcite, the Block and Joist Receiver consist of epoxy and glass fibers. In your ruling request, you confirm that the Block and Joist Receiver are manufactured by mixing the wet and dry ingredients in a similar pultrusion process as the Joist and Decking. However, unlike the paste of the Joist and Decking that is introduced into fiberglass rovings before being cut to length, the paste of the Block and Joist Receiver is poured over a large conveyer, and fiberglass strands are spread across the conveyor. Once a dough forms and cures, the dough is measured and pressed into molds by heat and pressure to form each component. The General EN to chapter 39 provides that products incorporating both plastic and glass fibers compressed together will remain classified in chapter 39 as articles of plastic, provided that the products have a hard, rigid character. Here, all of the subject merchandise consist of fiberglass and plastic compressed together. We also confirmed that each of the four products look, feel, and sound like plastic when dropped. They have the hard, rigid character of plastic despite a large percentage of fiberglass. Accordingly, pursuant to the General EN to chapter 39, the subject merchandise are classified in chapter 39, HTSUS, as plastic. Heading 3916 provides for, inter alia, rods and other profile shapes of plastics, whether or not surface-worked but not otherwise worked. EN 39.16 construes "surface-worked" to include products that have been polished or matt-finished. EN 39.16 also explains that the heading includes products that are cut to a length exceeding the maximum cross-sectional dimension. Further, EN 39.16 specifies that products of that heading are “obtained in the length in a single operation (generally extrusion).” However, EN 39.16 excludes products which have been “otherwise worked” through processes such as drilling, milling, assembly by gluing or sewing, etc. Because the Joist and Decking have a continuous cross-section throughout their lengths and have not been further worked beyond the pultrusion process, they meet the definition of a profile shape of heading 3916, HTSUS. However, because the Block and Joist Receiver have been otherwise worked by being pressed into molds, they do not meet the definition of a profile shape of heading 3916, HTSUS, and are therefore classified in heading 3925, HTSUS, as “builders’ ware of plastics, not elsewhere specified or included.” In your ruling request, you argue the subject merchandise are classified in heading 6810, HTSUS, because the glass fibers are not part of the agglomerated stone but are instead reinforcement. While heading 6810, HTSUS, does permit reinforcing materials in artificial products, this analysis is irrelevant concerning products with very little stone content, such as the Decking and Joist. Further, in rulings concerning agglomerated stone reinforced with fiberglass where the merchandise was classified in heading 6810, HTSUS, the fiberglass was in the form of a separate sheet, mesh, or core. See, e.g., NY K81885, dated February 3, 2004 (classifying fountains of stone powder agglomerated with resin and reinforced with a fiberglass core in heading 6810, HTSUS); NY K88141, dated August 10, 2004 (classifying planters of stone powder agglomerated with plastic and reinforced with a woven fiberglass core in heading 6810, HTSUS); and HQ H277471, dated March 13, 2017 (classifying flowerpots made of cement with embedded mesh fiberglass sheets in heading 6810, HTSUS). Moreover, the Block and Joist Receiver do not contain fiberglass in the form of a sheet, mesh, or core, and therefore cannot be classified in heading 6810, HTSUS, based on the presence of reinforcing materials. Based on the foregoing, we find that the Joist and Decking are classified in heading 3916, HTSUS, as “Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics.” We also find that the Block and Joist Receiver are classified in heading 3925, HTSUS, as “Builders’ ware of plastics, not elsewhere specified or included.” HOLDING: By application of GRIs 1 and 6, the Joist and Decking are classified in heading 3916, HTSUS, specifically in subheading 3916.90.5000, HTSUSA (Annotated), which provides for “Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics: Of other plastics: Other: Other: Other.” The 2022 column one, general rate of duty is 5.8% ad valorem. By application of GRIs 1 and 6, the Block and Joist Receiver are classified in heading 3925, HTSUS, specifically in subheading 3925.90.0000, HTSUSA, which provides for “Builders’ ware of plastics, not elsewhere specified or included: Other.” The 2022 column one, general rate of duty is 5.3% 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 online at http://www.usitc.gov/tata/hts/. Sincerely, Allyson Mattanah Allyson R. Mattanah, Chief Chemicals, Petroleum, Metals and Miscellaneous Articles Branch