HQ H306644
February 3, 2020
OT:RR:CTF:CPMMA H306644 CkG
TARIFF NO: 6802.99.00
Port Director
U.S. Customs and Border Protection
Port of Savannah
1 East Bay Street
Savannah, GA 31401
ATTN: Patrick Toole International Trade Specialist
Re: Application for Further Review of Protest No. 1703-16-100413; classification of stone blocks
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 1703-16-10041, dated November 28, 2016, on behalf of Slabco, Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of five entries of stone blocks identified as Blue Pearl, India Black (also referred to as Jet Black), and India Red in heading 6802, Harmonized Tariff Schedule of the United States (HTSUS).
The subject entries were made between May 21, 2015, and December 11, 2015. The merchandise was entered under heading 2516, HTSUS, specifically subheading 2516.11.00, as crude or roughly trimmed granite. The subject entries were liquidated on June 3, 2016, in heading 6802, specifically in subheading 6802.99, as other worked monumental or building stone.
FACTS:
Nine sizes of the Blue Pearl stone, and one size each of the India/Jet Black and India Red, were imported. The dimensions were given as follows:
Blue Pearl, #88-84417, 7-4 x 4-6 x 6-2
Blue Pearl, #88-84514, 8-4 x 2-11 x 3-0
Blue Pearl, #88-84019, 6-8 x 3-11 x 3-7
Blue Pearl, #88-84416, 7-5 x 4-5 x 6-2
Blue Pearl, #88-84387, 7-2 x 3-11 x 3-7
Blue Pearl, #88-84508, 7-6 x 3-3 x 6-3
Blue Pearl, #88-84341, 6-2 x 3-4 x 2-11
Blue Pearl, #88-84421, 5-4 x 3-11 x 3-4
Blue Pearl, #88-84551, 8-4 X 4-3 X 3-11
Jet Black, #532, 10-2 x 4-0 x 2-6
India Red, #63, 11-2 x 5-11 x 3-0
These stones were originally entered in subheading 2516.11.00, HTSUS, as crude or roughly trimmed granite. Samples of the Blue Pearl and India/Jet Black were submitted to the Port and forwarded to the Savannah Customs Laboratory for analysis. Laboratory Report SV20160695 determined that the Blue Pearl stone was “…irregular in shape, with two opposite faces surface polished…the sample is other stone.” Report SV20160696 for the India/Jet Black similarly determined that “[T]he piece is irregular in shape, with one side surface polished…the sample is other stone.” The Protestant disputed the finding that the stones had been polished, and requested that the samples be re-tested. Upon retesting, the CBP Laboratory affirmed its original results, finding again with respect to each sample that “[t]he top surface is highly reflective of light and very smooth to the touch indicating that is has been face-side polished.” Based on the Laboratory analysis, the Port liquidated the subject entries in heading 6802, HTSUS, as worked monumental or building stone.
Protestant concedes in the protest submission that the stones are not geological granite, but states that the stones are unpolished and therefore should remain classified in heading 2516, specifically in subheading 2516.90.00, as 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.
ISSUE:
Whether the instant merchandise is properly classified as crude monumental or building stone of heading 2516, HTSUS, or worked monumental or building stone of heading 6802, HTSUS.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry.? (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 Protest No. 1703-16-100413 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).? GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.? In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
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:
Granite:
2516.11: Crude or roughly trimmed:
2516.90.00: Other monumental or building stone….
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):
Other:
6802.99.00: Other stone…
Note 1 to Chapter 25 states, in pertinent part:
[T]he headings of this chapter cover only products which are in the crude state or which have been washed…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 EN to Chapter 25 elaborates:
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).
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. For example… the materials of headings 25.06, 25.14, 25.15, 25.16, 25.18 and 25.26 may be roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape.
EN 25.16 provides, in pertinent part:
The stones of this heading may be shaped or processed in the same ways as the stones of heading 25.15 (see the Explanatory Note to that heading). It should be noted that when broken up in the form of macadam these rocks are classified in heading 25.17, and that stones in shapes identifiable as road or paving setts, flagstones or curbstones are classified in heading 68.01 even if merely shaped or processed as specified in the text of this heading.
EN 25.15 further elaborates:
The heading is restricted to the stones specified, presented in the mass or roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape….Blocks, etc., which have been further worked, i.e., bossed, dressed with the pick, bushing hammer or chisel, etc., sand-dressed, ground, polished, chamfered, etc., are classified in heading 68.02.
The General EN for Chapter 68 notes that “This Chapter covers: (A) Various products of Chapter 25 worked to a degree beyond that permitted by Note 1 to that Chapter.”
EN 68.02 states, in pertinent 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 contends that the Laboratory conclusions are incorrect and that the Blue Pearl, India/Jet Black, and India Red stones at issue are properly classified in heading 2516, HTSUS, as crude stone, because they have not been polished or otherwise worked beyond the scope of Chapter 25. Protestant argues that the stones may appear to have a polished surface because they have been wire sawn, which can produce a smooth finish.
"It is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). In determining whether or not a protestant has overcome CBP’s presumption of correctness, we look to American Sporting Goods v. United States, 259 F. Supp. 2d 1302, 1308-1309 (Ct. Int’l Trade 2003) where the court found that the importer successfully overcame the presumption of correctness when the importer raised questions on the precision of CBP’s tests; CBP was unable to point to any significant flaws in the importer’s test; and CBP’s laboratory reports indicated that the case was a close call. If an outside laboratory report is submitted that differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and takes precedence over the outside report. See HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992).
In the instant case, two different CBP Laboratory analysts conducted a full examination of each of the submitted samples, and came to the same conclusions—that the stones were highly reflective and smooth to the touch on one or both sides, indicating that they were surface polished. In addition, the CBP Laboratory indicated that the tests were performed using the Laboratory’s customary testing methods for these cases. The Protestant has pointed to no errors in the CBP’s factual observations (i.e., that the stones’ surfaces were reflective and smooth), and has not submitted any independent laboratory tests to confirm its contention that the stones are not polished.
While the protestant provides an alternative explanation for why the CBP Laboratory might have found that the stones were polished, we do not find that the explanation is sufficient to account for the physical characteristics of the product observed by the laboratory employees. Polishing stone is accomplished by grinding the surface with abrasive material and applying coating and sealing treatments, resulting in a glossy, reflective surface. While the protestant contends that no such process was applied to the products at issue, our research indicates that mere wire sawing alone does not result in a reflective stone surface. The CBP Savannah Laboratory found—in four separate tests--that both sides of the Blue Pearl stone and one side of the India/Jet Black stone had highly reflective surfaces and were smooth to the touch.
Thus, we find that there is no evidence that would call into question the accuracy of CBP’s laboratory report, and the protestant has therefore failed to overcome the presumption of correctness given to CBP’s Laboratory. The Blue Pearl and Jet Black stones are therefore classified in heading 6802, HTSUS. Similarly, as there is no indication that it has been subjected to different finishing processes than the Blue Pearl or Jet Black stones, we find the India Red stone was correctly classified in heading 6802, HTSUS. HOLDING:
By application of GRI 1 and GRI 6, the Blue Pearl, India/Jet Black and India Red stones are classified in heading 6802, HTSUS, specifically subheading 6802.99.00, 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.” The 2019 column one, general rate of duty is 6.5% ad valorem.
You are instructed to DENY the Protest.
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,
Craig T. Clark, Director,
Commercial and Trade Facilitation Division