CLA-2 CO:R:C:M 951323 KCC
6802.92.00; 6802.99.00
District Director
U.S. Customs Service
P.O. Box 37260
Milwaukee, Wisconsin 53237-0260
RE: Protest No. 3701-91-100030; stone products; timely protest;
19 CFR 174.12(e); 90 days; geological designation; EN 25.15;
085266; slabs; tiles; beveled edges; Additional U.S. Note 1
to Chapter 68; processing necessary to facilitate
installation; 950125; 951047
Dear Sir:
This is in response to the Application for Further Review of
Protest No. 3701-91-100030, dated June 14, 1991, which pertains
to the tariff classification of various stone products under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The articles under consideration are various stone products
imported into the U.S. in seven different entries. All of the
entries were entered and liquidated under heading 6802, 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)...."
The issues in this protest involve the tariff classification of
the stone products at the subheading level. The protestant,
Maurice W. Mihelich & Associates, Inc., states that the basis for
this protest are that the entries were incorrectly classified,
the interpretations of the classification were structured so as
to achieve a higher dutiable rate, and the economic hardship of
the increased costs many months after a transaction has been
final.
In the first protested entry, item #20, the stone articles
described as "Travertine Marble Slabs" were entered under
subheading 6802.91.05, HTSUS, which provides for "...Other...
Marble, travertine and alabaster...Marble...Slabs." However, the
entry was liquidated on February 15, 1991, under subheading
6802.91.20, HTSUS, which provides for "...Other...Marble,
travertine and alabaster...Travertine...Articles of subheading
6802.21.10 that have been dressed or polished, but not further
worked." The protestant contends that the stone products are
travertine slabs which were correctly classified as entered.
In Item #21, the protested stone products, Rosa Tea stones,
were entered under subheading 6802.21.50, HTSUS, which provides
for "...Other monumental or building stone and articles thereof,
simply cut or sawn, with a flat or even surface...Marble,
travertine and alabaster...Other." The entry was liquidated on
April 10, 1991, under subheading 6802.92.00, HTSUS, which
provides for "...Other...Other calcareous stone." This
classification was based on Laboratory Report No. 3-90-32515-001
dated September 21, 1990, which found that the 3/8 of an inch
thick, 12 inch by 12 inch pink mottled tile was composed of
limestone. The laboratory report further found that the Rosa Tea
stones had beveled edges of 1.0, 0.8, 1.1 and 0.9 mm. The
protestant contends that all marble is in the form of limestone,
therefore classification as other calcareous stone is incorrect.
Item #22, the White Gioia and Rosso Levanto stone products
were entered under subheading 6802.91.05, HTSUS. Item #22 was
liquidated on April 10, 1991. The White Gioia was classified
under subheading 6802.91.15, HTSUS, which provides for
"...Other...Marble, travertine and alabaster...Marble...Other",
and the Rosso Levanto was classified under subheading 6802.99.00,
HTSUS, which provides for "...Other...Other stones." Laboratory
Report No. 3-91-30721-001 dated March 1, 1991, found that the
White Gioia stones described as a white tile with gray and
yellowish markings were composed of marble and had beveled edges
of 1.2, 1.1, 1.2 and 1.0 mm (all in excess of 1/32 of an inch).
The protestant contends that the White Gioia beveled edges are no
wider than any other tile for they are all produced on the same
machine. Laboratory Report No. 3-91-30720-001 dated March 1,
1991, found that the Rosso Levanto stones described as a dark
red-brown and green tile cut by white calcite veins were composed
of serpentine bearing rock type called "ophite" and that the
stones had various beveled edges which were less than 1/32 of in
inch (0.78 mm). The protestant contends that Rosso Levanto
stones are like any other marble stones which have different
colors and they are incorrectly classified.
Item #23 stone products were entered under subheading
6802.91.05, HTSUS. The stone products in this entry were
liquidated in two different subheadings on March 4, 1991. The
Nero Assoluto stones were classified under subheading 6802.99.00,
HTSUS, and the rest of the stone products were classified under
subheading 6802.92.00, HTSUS. The protestant states that the
Nero Assoluto stones are granite and should be classified
accordingly. However, as stated above and according to the entry
documents, the Nero Assoluto stones were identified as marble at
time of entry by the protestant.
Item #24, the Karnazeiko and Corinthos stone products were
entered under subheading 6802.91.05, HTSUS as marble slabs, and
under subheading 6802.91.15, HTSUS, as marble tiles. On March
22, 1991, these stone products were liquidated under 6802.92.00,
HTSUS. The Karnazeiko stones were found to be made of limestone
and had beveled edges of 1.3, 1.2, 1.3, and 1.0 mm in Laboratory
Report No. 3-91-30833-001 dated March 13, 1991. The Corinthos
stones were also found to be made of limestone and had beveled
edges of 1.5, 1.1, 1.2 and 1.3 mm in Laboratory Report No. 3-91-
30834-001 dated March 13, 1991. The protestant contends that all
marble is in the form of limestone, but is not known as true
limestone.
Items #25 and #26 involve the Rosa Tea stone products which
were entered under subheading 6802.91.05, HTSUS. On April 10,
1991, the Rosa Tea stones were liquidated under subheading
6802.92.00, HTSUS. The protestant contends that the Rosa Tea
stones should be classified as marble and not as limestone.
ISSUE:
I. Was the protest timely filed for each of the protested
entries pursuant to section 174.12(e), Customs Regulations
(19 CFR 174.12(e))?
II. Are the stone products classified under heading 6802, HTSUS,
as marble, limestone or serpentine?
III. Are the White Gioia stones properly classified as marble
slabs or marble tiles under subheading 6802.91, HTSUS?
LAW AND ANALYSIS:
I. Timely Filing of Protest
Protests against decisions of the appropriate Customs
officers must be in conformity with applicable statutory and
regulatory requirements. The time period for filing a protest is
clearly stated in section 174.12(e), Customs Regulations (19 CFR
174.12(e)). In that section of the Customs regulations, it is
stated:
Protests shall be filed, in accordance with section 514,
Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90
days after either:
(1) The date of notice of liquidation or reliquidation in
accordance with sections 159.9 or 159.10 of this
chapter....
Pursuant to 19 CFR 174.12(e) protestant's items #20 and #23 were
not timely protested within 90 days from the date of notice of
liquidation. Item #20 was liquidated on February 15, 1991, and
item #23 was liquidated on March 4, 1991. However, both of these
entries were protested on June 14, 1991. The time period which
elapsed between the date of the notice of liquidation and the
date of the filing of the protest is greater than the 90 day
period allowed for the filing of the protest. Therefore, this
protest for items #20 and #23 was not timely filed.
II. Geological Name Classification
Under the Tariff Schedule of the United States (TSUS) (the
precursor tariff schedule to the HTSUS), stones were often
classified by their trade names whether or not they met the
geological definition of the stone. However, under the HTSUS,
whose basic provisions are common to the tariffs of all of the
nations using the Harmonized Commodity Description and Coding
System (HCDCS), it is imperative that the United States, whenever
possible, define the various tariff terms in a manner consistent
with all nations utilizing the HTSUS. It is for this reason that
we have settled upon the commonly-accepted geological definition
of various stones to determine the proper classification under
the HTSUS.
Headquarters Ruling Letter (HRL) 085266, dated September 9,
1989, dealt with the classification of tiles that were invoiced
as marble. A laboratory analysis determined that the tiles were
geological limestone, not geological marble. Since limestone and
marble are distinct stones with different geological properties,
HRL 085266 held that polished limestone was not classifiable as
marble in subheading 6802.91, HTSUS. Rather, it was classifiable
in subheading 6802.92, HTSUS, which provides for worked
monumental or building stone (except slate) and articles
thereof...other, other calcareous stone. Therefore, despite the
fact that polished limestone is often referred to as "marble" in
the trade, it was the geological definition that was used in
determining the tariff classification of the tiles under the
HTSUS.
There are other stones that are classified under the HTSUS
by the geological definition rather than the trade definition.
Ecaussine is considered to be granite in the trade; however, it
is not classified as granite under the HTSUS. The Explanatory
Notes (ENs) of the HCDCS constitute the official interpretation
of the tariff at the international level. The ENs to Heading
2515, HTSUS, state that this heading provides for marble,
travertine, ecaussine and other calcareous monumental or building
stone. The ENs provide that "on fracture ecaussine shows a
granular surface similar to granite and is therefore sometimes
known as 'Belgian granite', 'flanders granite' or 'petit
granite'. HCDCS, Vol. 1, p. 191. However, granite is provided
for under heading 2516, HTSUS, which provides for, inter alia,
granite.
In the instant case, the various laboratory reports have
revealed that the Rosa Tea stones (items #21, #25 and #26),
Karnazeiko stones, and Corinthos stones (item #24) are geological
limestone and that the Rosso Levanto stones (item #22) are
geological serpentine called "ophite." According to HRL 085266
and the ENs, stones are classified based on their geological
makeup. Since geological limestone and geological serpentine are
different stones than geological marble, the stones cannot be
classified as entered by the protestant. The Rosa Tea,
Karnazeiko and Corinthos stones are properly classified under
subheading 6802.92.00, HTSUS, which provides for
"...Other...Other calcareous stone" and the Rosso Levanto stones
are classified under subheading 6802.99.00, HTSUS, which provides
for "...Other...Other stones."
III. Slabs vs. Tiles
The next issue to be decided is whether the White Gioia
stones in item #22 are considered to be marble slabs or marble
tiles. Marble stones are classified in Chapter 68 making the
Chapter 68 notes applicable to the tariff classification of the
White Gioia stones. Additional U.S. Note 1 to Chapter 68 states
that:
For the purposes of heading 6802, the term "slabs" embraces
flat stone pieces, not over 5.1 cm in thickness, having a
facial area of 25.8 cm2 or more, the edges of which have not
been beveled, rounded or otherwise processed except such
processing as may be needed to facilitate installation as
tiling or veneering in building construction.
Thus, edge working such as beveling would preclude classification
of merchandise as "slabs" in subheading 6802.91.05, HTSUS, unless
this processing is merely necessary to facilitate installation.
Additional U.S. Note 1 to Chapter 68, does not provide a specific
measurement for a process which would be acceptable to facilitate
installation.
In order to determine the extent of the processing which
would be acceptable for a slab, Customs in New York sought
information from the marble and limestone industry. Based on
this information, Customs determined that the edges, sides or
corners of a piece of marble need only be cut or processed to
1/32 of an inch to facilitate installation. Customs further
determined that any cut which is greater, either deeper or wider,
than 1/32 of an inch is not made merely to facilitate
installation, but rather is made in part for appearance or
beauty. Therefore, Customs determined that the cut of 1/32 of an
inch is a reasonable standard for distinguishing "slabs" from
marble which is a product worked beyond the definition of "slabs"
found in Additional U.S. Note 1 to Chapter 68. See, Headquarters
Ruling Letter (HRL) 950125 dated January 7, 1992, which held that
the marble was classified under subheading 6802.91.15, HTSUS, as
other marble because the edges were cut more than 1/32 of an inch
in spite of the protestant's contention that the edges were only
"eased."
"Easing" is a minimal operation performed to remove rough
cut edges from the marble. The tile edge finishing operation is
not a high precision process. Therefore, the amount of material
removed from the edges is dependent upon the pressure applied and
can vary from tile to tile or even along an edge. Therefore, it
is difficult, if not impossible, to establish an exact figure,
such as 1/32 of an inch, as a standard for determining the limit
on the amount of processing which is needed to facilitate
installation.
Simply examining whether more than 1/32 of an inch of edge
is removed is too rigid and does not allow for the non-precision
edge finishing operation found in the tile industry. However, to
facilitate proper classification of articles as slabs or other
marble pursuant to Additional U.S. Note 1 to Chapter 68, it is
necessary to have an established standard. After gathering
further information from the marble and limestone industry, we
conclude that certain types of marble may have to be eased as
much as 3/32 of an inch in order to facilitate installation.
This 3/32 of an inch standard will allow for varying degrees of
hardness of different stones and will allow for the industry's
non-precision edge finishing operation found in "easing" the
articles for handling purposes. See, HRL 951047 dated September
17, 1992.
Therefore, if the edge is eased not wider or deeper than
3/32 of an inch, then the stone articles will be determined to
have been processed to facilitate installation and classified as
slabs under subheading 6802.91.05, HTSUS, pursuant to Additional
U.S. Note 1 to Chapter 68.
Laboratory Report 3-91-30721-001, dated March 1, 1991, which
examined the White Gioia stones, found that the marble edges were
beveled 1.2 mm, 1.1 mm, 1.2 mm, and 1.0 mm. These beveled cuts
are less than 3/32 of an inch. Additionally, the protestant has
submitted evidence in support of "easing" in the form of
statements that "the bevels are no wider than any other tile" and
that "they all are made on the same machine." Based on the
laboratory report and the limited evidence submitted by the
protestant, the White Gioia stones are properly classified under
subheading 6802.91.05, HTSUS, as "...Other...Marble, travertine
and alabaster...Marble...Slabs."
HOLDING:
The protest to items #20 and #23 was not timely filed
pursuant to 19 CFR 174.12(e). This part of the protest is
denied.
The geological definition is used in determining the proper
tariff classification of stones under the HTSUS. Therefore, the
Rosa Tea (items #21, #25, and #26), Karnazeiko and Corinthos
(item #24) stones were properly classified under subheading
6802.92.00, HTSUS, which provides for "...Other...Other
calcareous stone", and the Rosso Levanto (item #22) stones were
properly classified under subheading 6802.99.00, HTSUS, which
provides for "...Other...Other stones." This part of the protest
is denied.
The White Gioia (item #22) stones are properly classified
under subheading 6802.91.05, HTSUS, which provides for
"...Other...Marble, travertine and alabaster...Marble...Slabs."
This part of the protest is granted.
This protest should be granted in part and denied in part
according to the above holding. A copy of this decision should
be attached to the Customs Form 19 and provided to the protestant
as part of the notice of action on the protest.
Sincerely,
John Durant, Director