CLA-2 CO:R:C:M 957195 KCC
District Director
U.S. Customs Service
P.O. Box 1490
Room 218
St. Albans, Vermont 05478
RE: Protest 0201-94-100212; Kinawa rough block stone;
2516.11.00; crude or roughly trimmed granite; geological
designation; EN 25.15; HRL 085266; HRL 086894; HRL 954358;
HRL 954912; HRL 955738; laboratory report
Dear District Director:
This is in response to Protest 0201-94-100212, which
pertains to the tariff classification of Kinawa rough block stone
under the Harmonized Tariff Schedule of the United States
(HTSUS). Additional letters with attachments from the protestant
to its broker dated March 30, and April 12, 1994, were taken into
consideration in rendering this decision.
FACTS:
The Kinawa rough block stone entry was liquidated on
February 18, 1994, under subheading 2516.90.00, HTSUS, as other
monumental or building stone. This classification was based on
Customs Laboratory Report #3-94-30237-001 dated December 8, 1993,
which was prepared after the Kinawa rough block stone was
examined. The Laboratory Report concluded that:
THE SAMPLE, A CRUDE ROCK, IS COMPOSED OF GNEISS.' IT IS
NOT COMPOSED OF GRANITE.
In a protest timely filed on May 13, 1994, the protestant
states that the Kinawa rough block stone is granite and,
therefore, is properly classified under subheading 2516.11.00,
HTSUS, as crude or roughly trimmed granite. The protestant
contends that Laboratory Report #3-94-30237-001 is inadequate
because it does not refer to the source of the material, the
structure of the material or its appearance. Furthermore, the
protestant states that since the composition of gneiss is
sometimes similar to the composition of granite, these two stones
are geologically identical and should be classified similarly.
The competing subheadings at issue are:
2516 Granite, porphyry, basalt, sandstone and other
monumental or building stone, whether or not roughly
rimmed or merely cut, by sawing or otherwise, into
blocks or slabs of a rectangular (including square)
shape...
2516.11.00 Granite...Crude or roughly trimmed.
2516.90.00 Other monumental or building stone.
ISSUE:
Is the Kinawa rough block stone classified as crude or
roughly trimmed granite under subheading 2516.11.00, HTSUS, or as
other monumental or building stone under subheading 2516.90.00,
HTSUS?
LAW AND ANALYSIS:
Under the Tariff Schedules of the United States (TSUS) (the
precursor 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 20,
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. See also, HRL 086894 dated November 23, 1990; HRL
954358 dated August 18, 1993; HRL 954912 dated November 5, 1993,
and; HRL 955738 dated March 30, 1994. Although each of the
referenced HRLs concerns the tariff classification of worked
stone, crude or rough stone is also classified pursuant to its
geological definition.
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. In understanding
the language of the HTSUS, the HCDCS Explanatory Notes (ENs) may
be consulted. The ENs, although not dispositive nor legally
binding, provide a commentary on the scope of each heading of the
HTSUS and are generally indicative of the proper interpretation
of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128,
(August 23, 1989). The ENs to Heading 2515, HTSUS (pg. 191),
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'. However,
granite is provided for under heading 2516, HTSUS, which provides
for, inter alia, granite.
In the instant case, Customs Laboratory Report #3-94-30237-001 dated December 8, 1993, has revealed that the Kinawa rough
block stone is geological gneiss. The laboratory report examined
whether the sample of Kinawa rough block stone was granite, i.e.,
" PLEASE CONFIRM GEOLOGICAL CONTENT OF STONE." The laboratory
report found that the sample was gneiss, not granite. According
to HRL 085266 and the ENs, stones are classified based on their
geological makeup. Since geological gneiss is a different stone
than geological granite, the Kinawa rough block stone cannot be
classified as entered by the protestant. The Kinawa rough block
stone is properly classified under subheading 2516.90.00, HTSUS,
as other monumental or building stone.
The protestant states that since the composition of gneiss
is sometimes similar to the composition of granite, these two
stones are geologically identical and should be classified
similarly. We are of the opinion that this position is
incorrect. Geological texts indicate that gneiss and granite are
geologically different. While granite is an igneous rock, gneiss
is a metamorphic rock. Gneiss is developed from the
metamorphosis of various stones which may include granite, shale
or other rocks. However, gneiss is a unique stone distinct from
granite. Gneiss may contain bands or layers developed from
several stones and some of the minerals in gneiss may be similar
to some of the minerals in granite. However, gneiss is
physically different from granite.
We note that in those instances when gneiss is developed
from granite, the gneiss is recrystallized granite. The process
of recrystallization makes the gneiss a unique and different
stone. The gneiss is physically different from granite even when
it has a similar chemical composition. Since the physical forms
of granite and gneiss are clearly different, geological texts
regard these items as different stones. Igneous rocks, i.e.,
granite, and metamorphic rocks, i.e., gneiss, are regarded as
geological different. See, Rocks and Minerals, Frederick Pough,
4th edition, 1976; Simon and Schuster's Guide to Rocks and
Minerals, Annibale Mottana, 1977; The Henry Holt Guide to
Minerals, Rocks and Fossils, W.R. Hamilton, 1974; Rocks, Minerals
and Fossils of the World, 1990, and Rocks and Minerals, 1992,
Chris Pellant, and; Rocks and Minerals, Pat Bell and David
Wright, 1985.
In cases such as this, where the protestant submits an
independent report that differs from the Customs laboratory
report, the Customs laboratory report cannot be disregarded and,
therefore, takes precedence over the independent 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 to their geological make up,
the same laboratory analysis must be used 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.
HOLDING:
The geological definition is used in determining the proper
tariff classification of stones under the HTSUS. Therefore, the
Kinawa rough block stone is properly classified under subheading
2516.90.00, HTSUS, as other monumental or building stone.
This protest should be Denied. In accordance with section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision should
be mailed by your office to the protestant no later than 60 days
from the date of this letter. Any reliquidation of the entry in
accordance with this decision must be accomplished prior to the
mailing of the decision. Sixty 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 to the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division