CLA-2 CO:R:C:M 951047 KCC
U.S. Customs Service
Room 200, Protest Office
423 Canal Street
New Orleans, Louisiana 70130
RE: Protest No. 2002-91-000534; marble; Additional U.S.
Note 1 to Chapter 68; processing necessary to
facilitate installation; slabs; tile; 950125; Dushoff
Distributing Corp.; Selectile Co., Inc.; easing;
beveling
Dear District Director:
This is in response to the request for Further Review of
Protest No. 2202-91-000534 dated May 6, 1991, regarding the
tariff classification of marble under the Harmonized Tariff
Schedule of the United States (HTSUS). An additional submission
dated May 22, 1992, regarding the edge cutting process,
photographs and samples was considered in our review of the
matter.
FACTS:
The merchandise under consideration is marble. Upon
importation into the U.S., the entry was liquidated under
subheading 6802.91.15, 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)...Other...Marble, travertine and
alabaster...Marble...Other."
This determination was based on Customs laboratory report
#5-91-30674-001 dated January 31, 1991, which found that the
marble was subject to a beveling operation which removed more
than 1/32 of an inch from the marble edges. For stone to be
defined as "slabs" pursuant to Additional U.S. Note 1 to Chapter
68, Customs has determined that cutting, beveling, or processing
of the edges of tile greater than 1/32 of an inch is more
processing than is necessary to facilitate installation.
Therefore, the marble tile under consideration was not considered
to be "slabs" for tariff purposes.
The Protestant, London Universal, contends that the marble
is properly classified under subheading 6802.91.05, HTSUS, which
provides for "...Marble, travertine and alabaster...Marble...
Slabs." Protestant states that the only processing performed on
the edges is a slight rubbing, called "easing", to remove the
sharpness caused by the saw cut. Furthermore, the protestant
states that in the marble industry an "eased edge" is not a
beveled edge as the amount of abrasion applied to the edge of the
tile is the absolute minimum necessary to remove the rough cut
edges of the tile. The protestant states that the edge finishing
operation is not a high precision process. The degree of the
edge removal is dependent upon the degree of pressure applied by
the grinding wheels onto the edge. Very often the pressure of
the grinding wheels can vary slightly during the working day
causing more or less of the edge to be removed.
The protestant states that for a level floor, tiles are
required to be set very tightly next to each other with a minimum
grout joint. In this situation, the edge of the tile is "eased"
with the absolute minimum cut of the edges. The protestant
opined that the range on the "eased edge" would be less than 1/16
of an inch. Additionally, for an non-level or concrete floor,
the tiles are required to be set further apart allowing for a
wider grout joint of 1/4 of an inch. In this situation, a
beveled edged is necessary so that one does not trip over the
edge of the tile once its installed. The protestant opined that
an edge is beveled beyond the processing necessary to facilitate
installation if it is 3/32 of an inch or more.
The protestant submitted a description of how tile is
produced and photographs of the machine that produces the edges
of the marble. Additionally, samples of its "eased edge" tile,
beveled tile, and tile without a worked edge were submitted for
examination.
ISSUE:
Does the marble have edges processed to facilitate
installation which are classified under subheading 6802.91.05,
HTSUS, as slabs, or are the edges beveled, rounded or otherwise
processed which are classified under subheading 6802.91.15,
HTSUS, as other marble?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (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 marble in this case is properly classified within
Chapter 68, making the Chapter 68 notes applicable to this
classification. Additional U.S. Note 1 to Chapter 68 states:
For 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."
In Dushoff Distributing Corp. v. United States, 71 Cust. Ct.
158, C.D. 4489 (1973), the U.S. Customs Court held that marble
saddles, beveled for safety purposes and not to ease handling or
aid in installation as thresholds, were not classifiable as
marble slabs pursuant to Headnote 2, Schedule 5, part 1C, Tariff
Schedules of the United States (TSUS) (the precursor note to
Additional U.S. Note 1 to Chapter 68). The court read Headnote 2
to mean "it limits the processing beyond cutting to size and
polishing to such as facilitates the placing or setting the stone
pieces in question in their final location in the wall, floor or
ceiling of a building." Id. at 163. The court further pointed
out that the Tariff Classification Study of November 15, 1960
(schedule 5, p. 24) pointed out that the exception was intended
to allow stone pieces whose edges had been "eased" for handling
purposes to be classified as slabs. See also, Selectile Co.,
Inc. v. United States, C.D. 4513 (1974), which held that marble
pieces which have been beveled for the purpose of creating
articles which will fit together to form quirk mitered corners
and not for the ease of handling or to facilitate installation
are not "slabs" pursuant to the definition found in Headnote 2,
Schedule 5, Part 1C, TSUS. The court sated an example of easing
"might be the removal of the sharp arris by beveling or
rounding...." Id. at 129.
"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,
for Customs to facilitate the 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 examining the evidence submitted by the protestant and
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.
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. From the information presented, the
marble at issue is properly classified under subheading
6802.91.05, HTSUS.
HOLDING:
The marble is properly classified under subheading
6802.91.05, HTSUS, as "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, travertine and alabaster...Marble...
Slabs."
This protest should be granted. 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