OT:RR:CTF:CPMM H289772 APP
U.S. Customs and Border Protection
Protest and Control
1100 Raymond Blvd., Suite 402
Newark, NJ 07102
Attn: Jennifer Tagliaferro, Supervisory Entry Specialist
RE: Protest and Application for Further Review Number 4601-17-102793; Tariff classification of flamed sandstone slabs
Dear Ms. Tagliaferro:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4601-17-102793, timely filed on July 28, 2017, on behalf of Natural Stone Resources (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of flamed sandstone slabs. We have considered the arguments presented by petitioner’s counsel and
Mr. Chuck Muehlbauer, Technical Director, Natural Stone Institute in a conference call on April 18, 2019.
FACTS:
The merchandise consists of non-calcareous sandstone slabs, which are mined, sawn, and flamed at a quarry in Italy. They are extracted from the quarry as rectangular blocks and then sawn into slabs with flat surfaces and rough edges up to 5 feet by 10 feet in size. The top and bottom sides are marked with linear striations as a result of the sawing process. One face of each slab is flamed by placing the slab on a conveyor belt. During the flaming process, a torch quickly sweeps across one surface of the stone for up to 2 minutes. The stone is exposed to intense flames, which generate descaling of the top surface layer, giving it a crystallized appearance. This process removes the striation saw marks from one surface of the stone. The flamed surface is flat and has a rough non-slip surface while the other side is just flat. The thickness of the stone slabs, as they are imported, ranges from 1-8 inches. The invoice submitted upon entry describes the imported slabs as “one face flamed.” After importation, the stone slabs are cut to size and shape, and finished into curbstones for exterior applications.
On September 5, 2018, CBP Laboratories and Scientific Services (“LSS”), New York Laboratory reported that, “The [provided] sample was a gray colored stone … The top has been surface worked to form a textured surface. The bottom was simply cut or sawn … The sample was non-agglomerated, non-calcareous sandstone.”
The Protest/AFR covers an entry filed on August 30, 2016, and liquidated on July 14, 2017. The sandstone slabs were entered at a duty rate of 3% ad valorem under subheading 2516.20.20, HTSUS, which provides for “Granite, porphyry, basalt, sandstone and other monumental or building stone, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape: Sandstone: Merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape.” The entry was liquidated at a duty rate of 6% ad valorem under subheading 6802.29.90, 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 monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface: Other stone: Other.”
ISSUE:
Whether the flamed sandstone slabs are classified as sandstone, which has been merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape under
heading 2516, HTSUS, or as natural stone worked into the shapes commonly used for pavement under heading 6801, HTSUS, or as worked articles of other monumental or building stone under
heading 6802, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The Protest/AFR was timely filed within 180 days of liquidation of the entries.
See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103 (2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of this Protest is properly accorded to protestant pursuant to 19 C.F.R.
§ 174.24(b) because the decision against which the Protest was filed in this matter involves questions of law and fact that have not been ruled upon by the Commissioner of CBP or his designee, or by the Customs Courts.
Merchandise imported into the United States is classified under the HTSUS, in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
2516 Granite, porphyry, basalt, sandstone and other monumental or building stone, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape:
6801 Setts, curbstones and flagstones, of natural stone (except slate):
6802 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):
Note 1 to chapter 25, HTSUS, states:
Except where their context or note 4 to this chapter otherwise requires, the headings of this chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading.
The products of this chapter may contain an added anti-dusting agent, provided that such addition does not render the product particularly suitable for a specific use rather than for general use.
Note 2 to chapter 25, HTSUS, states, in relevant part, that this chapter does not cover “mosaic cubes and the like (heading 6802).”
Note 1(a) to chapter 68, HTSUS, states that “This chapter does not cover: (a) Goods of chapter 25.”
Note 2 to chapter 68, HTSUS, states:
In heading 6802 the expression “worked monumental or building stone” applies not only to the varieties of stone referred to in heading 2515 or 2516, but also to all other natural stone (for example, quartzite, flint, dolomite and steatite) similarly worked; it does not, however, apply to slate.
Additional U.S. Note 1 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.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
The General ENs to chapter 25, state, in relevant part:
As provided in Note 1, this Chapter covers, except where the context otherwise requires, mineral products only in the crude state or washed (including washing with chemical substances to eliminate impurities provided that the structure of the product itself is not changed), crushed, ground, powdered, levigated, sifted, screened or concentrated by flotation, magnetic separation or other mechanical or physical processes (not including crystallisation). The products of this Chapter may also be heated to remove moisture or impurities or for other purposes, provided that the heat treatment does not modify their chemical or crystalline structures. However, other heat treatments (e.g., roasting, fusion or calcination) are not allowed, unless specifically permitted by the heading text. Thus, for example, heat treatment which could entail a change in chemical or crystalline structure is allowed for products of headings 25.13 and 25.17, because the texts of these headings explicitly refer to heat treatment.
The products of this Chapter may contain an added anti dusting agent, provided that such addition does not render the product particularly suitable for specific use rather than for general use. Minerals which have been otherwise processed (e.g., purified by re crystallisation, obtained by mixing minerals falling in the same or different headings of this Chapter, made up into articles by shaping, carving, etc.) generally fall in later Chapters (for example, Chapter 28 or 68).
In certain cases, however, the headings: … (2) Specify conditions or processes which are admissible in those cases in addition to those allowed generally under Note 1 to this Chapter. … the materials of headings … 25.16 may be roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape ….
EN 2515.12, which applies to EN 2516.12, provides in relevant part, that “To fall in this subheading, the blocks and slabs which have been merely cut by sawing must bear discernible traces of the sawing (by wire strand or other saws) on their surfaces ….”
EN 25.16 defines the term “sandstone” as “a rock of sedimentary origin composed of small quartzose or siliceous particles naturally agglomerated by calcareous or siliceous materials.”
The General ENs to chapter 68, state, in relevant part:
This Chapter covers: (A) Various products of Chapter 25 worked to a degree beyond that permitted by Note 1 to that Chapter … Most of these products and finished articles are obtained by operations (e.g., shaping, moulding), which alter the form rather than the nature of the constituent material. Some are obtained by agglomeration (e.g., articles of asphalt, or certain goods such as grinding wheels which are agglomerated by vitrification of the binding material); others may have been hardened in autoclaves (sand-lime bricks). The Chapter also includes certain goods obtained by processes involving a more radical transformation of the original raw material (e.g., fusion to produce slag wool, fused basalt, etc.).
EN 68.01 states, in relevant part, that:
This heading covers natural stone other than slate (e.g., sandstone, granite and porphyry) worked into the shapes commonly used for paving or bordering roads, pavements or the like; such stones remain in this heading even if they are also suitable for other uses … The products of this heading are obtained by splitting, rough hewing or shaping quarry-stone, by hand or machine. Setts and flagstones usually have rectangular (including square) faces, but whereas flagstones are thin in relation to their length and width, setts are roughly cubical or take the form of truncated pyramids. Curbstones may be straight or curved; they are normally of rectangular (other than square) cross-section.
The heading includes stone in shapes identifiable as setts, curbstones or flagstones, even if obtained simply by splitting, sawing or roughly squaring; it also covers those which have been dressed, bushed, sand dressed, ground, rounded at the edges, chamfered, tenoned and mortised or specially worked for particular road uses (curbstones shaped to allow for road drainage or garage exits).
EN 68.02 states, in relevant part:
This heading covers natural monumental or building stone (except slate) which has been worked beyond the stage of the normal quarry products of Chapter 25. There are, however, certain exceptions where goods are covered more specifically by other headings of the Nomenclature and examples of these are given at the end of this Explanatory Note and in the General Note to the Chapter.
The heading therefore covers stone which has been further processed than mere shaping into blocks, sheets or slabs by splitting, roughly cutting or squaring, or squaring by sawing (square or rectangular faces).
The heading thus covers stone in the forms produced by the stone-mason, sculptor, etc., viz.: …
(B) Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a “rock faced” finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc….
Protestant asserts that the sandstone slabs are classifiable in heading 2516, HTSUS, specifically under subheading 2516.20.20, HTSUS. Protestant argues that the heating process is allowed under the General ENs to chapter 25 and note 1 to chapter 25, HTSUS. According to protestant, the heat treatment is comparable to a levigated process permitted under note 1 to
chapter 25. Protestant cites to Michigan Tech VPA, Levigating, Vimeo (Dec. 26, 2014, 2:35 PM), https://vimeo.com/115442062 to explain levigation. In the video, an abrasive is sprinkled onto wet limestone and a levigater is applied to remove striation saw marks on the stone. The levigator is a large disc with a rotating handle operated by hand. Protestant claims that the heating treatment only removes moisture without modifying the stone’s chemical or crystalline structure. Protestant’s expert in natural stone, Mr. Chuck Muehlbauer, advised that the instant sandstone slabs were not a quarry product, that the flaming was similar to a finishing treatment such as polishing except using a different method, and that the flame treatment texturized the surface, removing the stun marks.
Unworked sandstone in a natural state (e.g., stone which is crude, roughly trimmed, or merely cut into rectangular blocks or slabs by sawing and which bears saw marks) is classified in heading 2516, HTSUS. Pursuant to note 1 to chapter 25 and the text of heading 2516, sandstone is considered “worked” beyond the scope of chapter 25 if it has been processed in a manner other than crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes, trimmed or cut into blocks or slabs of a rectangular (including square) shape. The HTSUS and EN 25.16 provide no explanation of what “other mechanical or physical processes” (as mentioned in note 1 to chapter 25) are permitted. However, the general EN to chapter 25 indicates that the intent of the exclusionary language is to exclude those products, which have been processed into articles by cutting and shaping, or by heat treatment that does more than just removing moisture or impurities, and which could result in a change of the chemical or crystalline structure. The classification of such articles is directed to later chapters, such as chapter 68. The instant sandstone products are more than crude, roughly trimmed, levigated, or merely cut direct-from-the-quarry stone slabs. The slabs heat up during the flame treatment and pieces break off producing a rough non-slip surface. They are subjected to a finishing treatment that gives the surface a different texture, which is beyond what is allowable in chapter 25.
Heading 2516, HTSUS, does not cover products, which have been heat-treated by a flaming process that is akin to a finishing treatment. While the ENs to chapter 25 allow for products to be heated to remove moisture or impurities, provided that the heat treatment does not modify their chemical or crystalline structures, the instant sandstone slabs are directly exposed to flame, rather than indirect heat, and the flame treatment gives the surface a different texture and removes the saw marks. The flaming is nothing like levigation, the process of grinding off the top layer of a stone often used on lithography stones, where water and an abrasive are used to remove an image in limestone. The instant heat treatment removes grooves created by sawing. There is no indication that levigation could do the same. The requested classification, subheading 2516.20.20, HTSUS, is for sandstone, which has been merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape. The subject stone is subjected to heat treatment, which generates descaling of the surface and removes the saw marks from one surface of the stone. After the heating process, the flamed surface is flat and has a rough non-slip surface. As a result, the heat-treated slabs cannot be classified in heading 2516, HTSUS, under subheading 2516.20.20, because they have been further worked beyond the stage of the normal quarry products of chapter 25.
We next turn to chapter 68, HTSUS, which covers products of chapter 25, HTSUS, worked to a degree beyond that permitted by note 1 to chapter 25. Any cutting that goes beyond simple cutting from the quarry block requires classification in chapter 68. To be classified in heading 6801, the merchandise must be worked into shapes identifiable as setts, curbstones, or flagstones in their condition as imported. The merchandise is imported as slabs with rough edges, which will be cut to size and shape, and will be finished into curbstones after importation into the United States. Thus, the sandstone slabs are not classifiable in heading 6801, HTSUS. We next turn to heading 6802.
Heading 6802 covers natural monumental or building stone which has been worked beyond the stage of normal quarry products of chapter 25, including, as discussed in the EN to that heading, “Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a ‘rock faced’ finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc.” Flaming is similar to the above-listed finishing treatments because the stone surface is deliberately changed to a textured surface after brief exposure to intense heat and the saw marks are removed from the flamed surface of the stone. The change in the texture of the surface of the stone has therefore resulted in a product of chapter 68, which was “worked” beyond the scope of direct-from-the-quarry products of chapter 25.
CBP has previously classified stone worked to a degree greater than simply cut or sawn, with a flat or even surface in subheading 6802.99.00, HTSUS. See Headquarters Ruling Letter
(“HQ”) 959301, dated October 9, 1997 (classifying flat, rectangular slabs of serpentine stone finished on one side in subheading 6802.99.00, HTSUS, because they were further processed rather than mere shaping into blocks, sheets or slabs by roughly splitting, cutting, squaring, or squaring by sawing); HQ 950713, February 19, 1992 (classifying granite worked beyond the point of normal quarry products in subheading 6802.99.00, HTSUS); New York Ruling Letter (“NY”) C88208, dated June 26, 1998 (non-agglomerated, non-beveled piece of cut stone with a polished surface classified in subheading 6802.99.00, HTSUS); NY I89249, dated January 22, 2003 (carved sandstone classified in subheading 6802.99.00, HTSUS).
Just like the stone in HQ 959301, HQ 950713, NY C88208, and NY I89249, the subject sandstone slabs were surface worked. The torching process removed the striation marks and gave the flamed surface a textured surface, which is beyond the scope of merchandise classifiable in chapter 25. Since the subject sandstone is worked to a degree beyond that permitted by note 1 to chapter 25, HTSUS, and cannot be classified in heading 6801, HTSUS, the flamed slabs are classified in heading 6802, HTSUS, specifically under subheading 6802.99.0060, HTSUSA.
HOLDING:
By application of GRIs 1 and 6, the flamed sandstone slabs are classified under
heading 6802, HTSUS, specifically under subheading 6802.99.0060, 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: Other stone: Other.” The column one, general rate of duty at the time of entry was 6.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant, through its counsel, no later than 60 days from the date of this letter. Any reliquidation of the entry, in accordance with the decision, must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and through other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division