CO:R:C:G 088467 NLP
Area Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266
RE: Decision on Application for Further Review of Protest Nos.
3801-89-002859 and 3801-0-001677, dated November 8, 1989 and
March 19, 1990, respectively; marble tiles.
Dear Sir:
Protest Nos. 3801-89-002859 and 3801-0-001677 were filed
against your decision to classify tiles, entry numbers G-17-
0016031 and G-17-0014925-6, in subheading 6802.91.15 HTSUSA,
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,
marble, other.
FACTS:
These protests for further review concern Crema Marfil,
Coralto and Marron tiles imported by Terazzo and Marble Supply
from Marmoles Visemar, located in Spain. The tiles were invoiced
as marble. A Customs laboratory tested samples of the tiles and
determined that the Crema Marfil and Coralto tiles are
geologically composed of limestone. Limestone and marble have a
different geological makeup. Limestone is a sedimentary rock,
while marble is a metamorphic rock formed when limestone
recrystallizes in the earth over a long period of time. Marble
is highly crystalline and resistant to weathering, while
limestone is not. The Marron Tile is composed of brecciated
dolomite. None of the tiles are agglomerated. The tiles have
been polished and have beveled edges and measure 30.5 X 30.5 X 1
cm.
The protestant maintains that the tiles are composed of
marble and are not further worked. As a result, the tiles would
be classifiable in subheading 6802.21.5000, HTSUSA, 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 rate of duty is 2.1 percent
ad valorem. It is Customs position that the instant tiles are
not composed of marble and have been further worked beyond
cutting or sawing. Therefore, the tiles would be classifiable in
subheading 6802.92.00, HTSUSA, which provides for other
calcareous stone, other than those simply cut or sawn. The rate
of duty is 6 percent ad valorem.
ISSUE:
Whether the tiles at issue are classifiable as marble or
other calcareous stone.
Whether the tiles are simply cut or sawn, or whether they
are further worked.
LAW AND ANALYSIS:
Headquarter's 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; rather, it was classifiable in
subheading 6802.92, HTSUSA, 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 HTSUSA.
There are other stones that are classified under the HTSUSA
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 HTSUSA. The Explanatory
Notes constitute the official interpretation of the tariff at the
international level. The Explanatory Notes to Heading 2515,
HTSUSA, state that this heading provides for marble, travertine,
ecaussine and other calcareous monumental or building stone.
The Explanatory Notes 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". However, granite is provided for under heading 2516,
HTSUSA, which provides for, inter alia, granite.
In the instant case, the laboratory reports have revealed
that these tiles are geological limestone. According to HRL
085266 and the Explanatory Notes, stones are classified based on
their geological makeup. Since geological marble and geological
limestone are different stones, the tiles cannot be classified as
marble in subheading 6802.21. The tiles must be classified as
other calcareous stones.
The next issue to be decided is whether the instant tiles
are simply cut or sawn or are further worked. On behalf of the
importer, the Customs Broker, T.J. Filbin, argues that the
instant tiles are not further worked and should be classified in
subheading 6802.21.50, HTSUSA. T.J. Filbin points to HRL 083619,
dated March 30, 1989, which dealt with the classification of a
marble tile that had been polished, beveled and gauged. This
tile was classified in subheading 6802.91.1500, HTSUSA, which
provides for marble, other than simply cut or sawn. As a result,
they argue that subheading 6802.91, HTSUSA, should only be
applied when three operations have been performed on the tile-
polishing, beveling and gauging. Therefore, since the instant
tiles are marble and are not polished, beveled and gauged, they
are not classifiable in subheading 6802.91, HTSUSA, but in
subheading 6802.21, HTSUSA.
The language of the HTS clearly indicates that subheading
6802.21, HTSUSA, only covers items which are simply cut or sawn
and are made of marble, travertine or alabaster. Therefore, any
operation performed on stones which goes beyond simple cutting or
sawing, such as beveling or polishing, precludes classification
of the product in subheading 6802.21, HTSUSA. The product in HRL
083619 simply happened to be beveled, polished and gauged. There
is nothing in that ruling which indicates that all three of these
operations have to be performed before subheading 6802.91,
HTSUSA, would be applicable. Thus, since the instant tiles are
beveled and polished and are composed of geological limestone,
not geological marble, they are classifiable in subheading
6802.92, HTSUSA, which provides for other calcareous stone, other
than simply cut or sawn.
HOLDING:
The instant tiles are classifiable in subheading 6802.92.00,
HTSUSA, which provides for other calcareous stone, other than
simply cut or sawn. The rate of duty is 6 percent ad valorem.
The protest is denied. A copy of this decision should be
attached to the Form 19 Notice of Action to be sent to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division