CLA-2 CO:R:C:M 952679 KCC
District Director
U.S. Customs Service
101 East Main Street
Norfolk, Virginia 23510
RE: Protest No. 1401-92-100115; stone product; geological
designation; HRL 085266; EN 25.15; serpentine; laboratory
report
Dear Sir:
This is in response to the Application for Further Review of
Protest No. 1401-92-100115 dated July 21, 1992, which pertains to
the tariff classification of stone products under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The article under consideration is a stone product described
as "polished green gressoney." Upon importation into the U.S.,
the entry was liquidated under subheading 6802.99.00, 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; artificially colored granules,
chippings and powder, of natural stone including slate)...
Other...Other stone."
This determination was based on Customs laboratory report
#4-92-22013-001 dated May 27, 1992, which found that the polished
green gressoney stone measuring 9 by 10 by 1 centimeters was made
of serpentine (carbonated), and was not an agglomerated stone.
The serpentine stone was further described as having one polished
surface and cut edges which were beveled from 0.0320 to 0.0625 of
an inch.
The protestant, Centex-Simpson Construction, contends that
the stone is marble and, therefore, is properly classified under
subheading 6802.91.05, HTSUS, which provides for "...Marble,
travertine and alabaster...Marble...Slabs." As evidence that the
stone is marble, the protestant has submitted a report from the
University of Richmond, the Lora Robins Gallery of Design from
Nature. The analyst opined that the stone submitted to him by
the protestant was marble.
His opinion was based on the fact that the sample actively
reacted with hydrochloric acid, had a hardness of 3 and that its
fluorescence was that of calcite. The analyst states that all of
these factors describe marble rather than serpentine which has a
hardness of 2.5 and does not react with hydrochloric acid.
ISSUE:
Are the stone products classified under heading 6802, HTSUS,
as marble or as serpentine?
LAW AND ANALYSIS:
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 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 their 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 Harmonized
Commodity Description and Coding System 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 his 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 Customs laboratory report has
revealed that the polished green gressoney stone is geological
serpentine (carbonated). Therefore, small amounts of the
carbonate in the stone would cause a reaction to hydrochloric
acid as found in the protestant's report. Additionally, Customs
laboratory conducted an X-ray emission test and a microscopic
examination of a thin section of the sample. Based on all the
tests and examination, Customs laboratory determined that the
sample was geological serpentine.
According to HRL 085266 and the ENs, stones are classified
based on their geological makeup. Since geological serpentine is
a different stone than geological marble, the stone cannot be
classified as entered by the protestant. The green gressoney is
properly classified under subheading 6802.99.00, HTSUS, which
provides for "...Other...Other stones."
In cases such as this, where a party submits an outside
report that differs from the Customs laboratory report, the
Customs laboratory report cannot be disregarded and, therefore,
takes precedence over the outside report. Customs Directive 099
3820-002 dated May 4, 1992. In administering the HTSUS, Customs
must be consistent while classifying the same type of merchandise
entering the U.S. In order to consistently classify stone
products according their geological make up, the same laboratory
analysis must be executed throughout Customs. Customs cannot
rely on outside reports which may or may not utilize different
testing methods and still remain consistent in its tariff
classification. Additionally, Customs does not have any evidence
that the merchandise tested by the outside laboratory is the same
merchandise that was imported into the U.S. Therefore, Customs
must rely on its own laboratory analysis when determining the
proper tariff classification of merchandise.
HOLDING:
The geological definition is used in determining the proper
tariff classification of stones under the HTSUS. Therefore, the
green gressoney is properly classified under subheading
6802.99.00, HTSUS, which provides for "...Other...Other stones."
This protest should be denied in full. 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
Commercial Rulings Division