> HQ 965778
>
> September 20, 2002
>
> CLA-2 RR:CR:GC 965778 AML
>
> **CATEGORY**: Classification
>
> **TARIFF NO**.: 6802.10.00
>
> Port Director
>
> U.S. Customs Service
>
> 35 West Service Road
>
> Champlain, NY 12919
>
> **Re:** Protest 0712-02-100025; stone mosaic borders
>
> Dear Port Director:
>
> The following is our decision regarding protest 0712-02-100025, filed
> by a customs broker on behalf of Mosaique Surface, Inc., against your
> classification of stone mosaic borders under subheading 6802.92.00 of
> the Harmonized Tariff Schedule of the United States (HTSUS).
> Subheading 6802.92.00, HTSUS, provides for worked monumental or
> building stone . . . mosaic cubes and the like . . . other calcareous
> stone. A sample, catalog and descriptive literature were provided for
> our consideration.
>
> **FACTS**:
>
> The articles at issue are stone mosaic borders of various designs. The
> protestant describes the articles as multi-colored mosaic borders made
> of marble, backed with a textile mesh. The articles are used for
> indoor decoration.
>
> The protestant states that it employs a number of "recognized" artists
> on its staff and that these artists assemble the articles entirely by
> hand.
>
> The articles were entered in December 2001, and the entry was
> liquidated on February 15, 2002. The protest was filed on February 20,
> 2002. The products were classified at liquidation under subheading
> 6802.92.00, HTSUS.
>
> **ISSUE**:
>
> Whether the stone mosaic borders are classifiable under heading

6802, HTSUS, which provides for, among other things, mosaic cubes and
the like, of natural stone . . . the largest surface area of which is
capable of being enclosed in a square the size of which is less than
seven centimeters, or under heading 9701, HTSUS, which provides for,
among other things, works of art executed entirely by hand?

**LAW and ANALYSIS**:

Initially we note that the protest was timely filed and the matter
protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

Classification of imported merchandise is accomplished pursuant to the
Harmonized Tariff Schedule of the United States (HTSUS). Classification
under the HTSUS is guided by the General Rules of Interpretation of the
Harmonized System (GRIs). GRI 1, HTSUS, states in part that "for legal
purposes, classification shall be determined according to the terms of
the headings and any relative section or chapter notes\[.\]"

The HTSUS provisions under consideration are as follows:

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):

6802.10.00 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, chippings and powder:

> Other monumental or building stone and articles thereof, simply cut or
> sawn, with a flat or even surface:

6802.92.00 Other calcareous stone.

\* \* \*

9701 Paintings, drawings and pastels, executed entirely by hand, other
than drawings of heading 4906 and other than hand-painted or
hand-decorated manufactured articles; collages and similar decorative
plaques; all the foregoing framed or not framed:

9701.90.00 Other.

Because they are handmade by artisans, the protestant alleges that the
articles are classifiable under heading 9701, HTSUS, which provides for
works of art executed entirely by hand.

The Harmonized Commodity Description and Coding System Explanatory Notes
(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. Customs believes the ENs should always be
consulted. See T.D. 89‑80. 54 Fed. Reg. 35127, 35128 (Aug. 23,

1989).

The General ENs to Chapter 97 provide, in pertinent part, as follows:

This Chapter covers:

> \(A\) Certain works of art: paintings, drawings and pastels, executed
> entirely by hand, and collages and similar decorative plaques (heading
> 97.01); original engravings, prints and lithographs (heading 97.02);
> original sculptures and statuary (heading 97.03).
>
> \* \* \*
>
> 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 9701, HTSUS, provide, in pertinent part, as follows:

> \(B\) COLLAGES AND SIMILAR DECORATIVE PLAQUES
>
> This group covers collages and similar decorative plaques, consisting
> of bits and pieces of various animal, vegetable or other materials,
> assembled so as to form a picture or decorative design or motif and
> glued or otherwise mounted on a backing, *e.g*., of wood, paper or
> textile material. The backing may be plain or it may be hand-painted
> or imprinted with decorative or pictorial elements which form part of
> the overall design. Collages range in quality from articles cheaply
> produced in quantity for sale as souvenirs up to products which
> require a high degree of craftsmanship and which may be genuine works
> of art.

The protestant relies on several prior rulings in support of its
contention that the subject articles are classifiable under heading
9701, HTSUS: Port Decision (PD) E81195, dated May 17,1999; New York
Ruling Letter (NY) 811127, dated June 21, 1995; NY A82907, dated May 15,
1996. We have reviewed the controlling facts and conclusions reached in
the rulings cited and conclude that they are distinguishable from the
articles in question. In PD E81195, stone and glass mosaic collages were
classified under heading 9701, HTSUS. Those mosaics depicted a person
and a "colorful basket of flowers" and were designed to hang on the
wall. In NY 811127, mosaic floor medallions designed to be permanently
integrated into the floor of an airport were classified under heading
9812, HTSUS. In NY A82907, glass mosaic tiles were classified under
heading 7016, HTSUS, which provides for glass cubes and other glass
smallwares, whether or not on a backing for mosaics or similar
decorative purposes.

The articles at issue are substantially similar to prearranged tiles or
decorative

inserts sold in hardware and do-it-yourself stores. Such articles are
affixed during construction and grouted or otherwise sealed with the
tiles or other wall covering. As such, while clearly decorative in
appearance, they do not rise to the level of works of art. Therefore,
although the articles are assembled entirely by artisans' hands and
fulfill a decorative function, we conclude that the articles are more
aptly described as building stones.

The ENs to heading 6802, HTSUS, provide, in pertinent part, as follows:

> The heading thus covers stone in the forms produced by the stonemason,
> sculptor, etc., *viz.*:
>
> \(A\) Roughly sawn blanks; also non-rectangular sheets (one or more
> faces triangular, hexagonal, trapezoidal, circular, etc.).
>
> \(B\) Stone of any shape (including blocks, slabs or sheets), whether
> or not in the form of finished articles, which has been bossed
> (*i.e*., stone which has been given a "rock faced" finish by smoothing
> along the edges while leaving rough protuberant faces), dressed with
> the pick, bushing hammer, or chisel, etc., furrowed with the
> drag-comb, etc., planed, sand dressed, ground, polished, chamfered,
> moulded, turned, ornamented, carved, etc.
>
> \* \* \*
>
> The heading also covers small prepared mosaic cubes and the like of
> marble, etc., for various floor or wall coverings, etc., whether or
> not backed with paper or other materials. It further includes
> artificially coloured granules, chippings and powder of marble or of
> other natural stones (including slate) (*e.g.*, for shop window
> displays), but untreated pebbles, granules, chippings and coloured
> natural sands fall in Chapter 25.

\* \* \*

> The heading therefore includes not only constructional stone
> (including facing slabs) worked as above, but also . . . other
> ornamental goods essentially of stone are, in general, classified in
> this heading.

\* \* \*

> **The heading also covers small prepared mosaic cubes and the like of
> marble, etc., for various floor or wall coverings, etc., whether or
> not backed with paper or other materials** \[bold emphasis added\].

We believe that, in their condition as imported, the stone mosaic
borders are intended to be incorporated into a building for its
decorative effect. The EN to heading 6802, HTSUS, provides that such
articles, comprised of stone and affixed to a backing, although
decorative and produced by the sculptor or artisan, are classifiable at
the superior heading level as mosaic cubes and the like. Therefore, the
merchandise at

issue should be classified under subheading 6802.10, HTSUS, which
provides for, among other things, mosaic cubes and the like, of natural
stone . . . the largest surface area of which is capable of being
enclosed in a square the size of which is less than

seven centimeters. See Headquarters Ruling Letter 087265, dated July 19,
1990, for a similar determination.

**HOLDING:**

The stone mosaic borders are classifiable 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: 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, chippings and powder.

The protest is **DENIED**, except to the extent that the
reclassification as indicated above results in a refund of duties paid.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, this decision,
together with Customs Form 19, should be mailed by your office to the
protestant no later than sixty (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 this decision.

Sixty (60) 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 the public via the
Diskette Subscription Service, the World Wide Web at
*www.customs.treas.gov*, and other public access channels.

Sincerely,

Myles B. Harmon, Acting Director

Commercial Rulings Division