HQ 0951323 - Protest No. 3701-91-100030; stone products; timely protest; 19 CFR 174.12(e); 90 days; geological designation; EN 25.15; 085266; slabs; tiles; beveled edges; Additional U.S. Note 1 to Chapter 68; processing necessary to facilitate installation; 950125; 951047 - United States International Trade Commision Rulings

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HQ 951323

October 2, 1992

CLA-2 CO:R:C:M 951323 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6802.91.05; 6802.91.15;
6802.92.00; 6802.99.00

District Director
U.S. Customs Service
P.O. Box 37260
Milwaukee, Wisconsin 53237-0260

RE: Protest No. 3701-91-100030; stone products; timely protest; 19 CFR 174.12(e); 90 days; geological designation; EN 25.15; 085266; slabs; tiles; beveled edges; Additional U.S. Note 1 to Chapter 68; processing necessary to facilitate installation; 950125; 951047

Dear Sir:

This is in response to the Application for Further Review of Protest No. 3701-91-100030, dated June 14, 1991, which pertains to the tariff classification of various stone products under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles under consideration are various stone products imported into the U.S. in seven different entries. All of the entries were entered and liquidated under heading 6802, 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)...." The issues in this protest involve the tariff classification of the stone products at the subheading level. The protestant, Maurice W. Mihelich & Associates, Inc., states that the basis for this protest are that the entries were incorrectly classified, the interpretations of the classification were structured so as to achieve a higher dutiable rate, and the economic hardship of the increased costs many months after a transaction has been final.

In the first protested entry, item #20, the stone articles described as "Travertine Marble Slabs" were entered under subheading 6802.91.05, HTSUS, which provides for "...Other... Marble, travertine and alabaster...Marble...Slabs." However, the entry was liquidated on February 15, 1991, under subheading 6802.91.20, HTSUS, which provides for "...Other...Marble, travertine and alabaster...Travertine...Articles of subheading 6802.21.10 that have been dressed or polished, but not further worked." The protestant contends that the stone products are travertine slabs which were correctly classified as entered.

In Item #21, the protested stone products, Rosa Tea stones, were entered under subheading 6802.21.50, HTSUS, which provides for "...Other monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface...Marble, travertine and alabaster...Other." The entry was liquidated on April 10, 1991, under subheading 6802.92.00, HTSUS, which provides for "...Other...Other calcareous stone." This classification was based on Laboratory Report No. 3-90-32515-001 dated September 21, 1990, which found that the 3/8 of an inch thick, 12 inch by 12 inch pink mottled tile was composed of limestone. The laboratory report further found that the Rosa Tea stones had beveled edges of 1.0, 0.8, 1.1 and 0.9 mm. The protestant contends that all marble is in the form of limestone, therefore classification as other calcareous stone is incorrect.

Item #22, the White Gioia and Rosso Levanto stone products were entered under subheading 6802.91.05, HTSUS. Item #22 was liquidated on April 10, 1991. The White Gioia was classified under subheading 6802.91.15, HTSUS, which provides for "...Other...Marble, travertine and alabaster...Marble...Other", and the Rosso Levanto was classified under subheading 6802.99.00, HTSUS, which provides for "...Other...Other stones." Laboratory Report No. 3-91-30721-001 dated March 1, 1991, found that the White Gioia stones described as a white tile with gray and yellowish markings were composed of marble and had beveled edges of 1.2, 1.1, 1.2 and 1.0 mm (all in excess of 1/32 of an inch). The protestant contends that the White Gioia beveled edges are no wider than any other tile for they are all produced on the same machine. Laboratory Report No. 3-91-30720-001 dated March 1, 1991, found that the Rosso Levanto stones described as a dark red-brown and green tile cut by white calcite veins were composed of serpentine bearing rock type called "ophite" and that the stones had various beveled edges which were less than 1/32 of in inch (0.78 mm). The protestant contends that Rosso Levanto stones are like any other marble stones which have different colors and they are incorrectly classified.

Item #23 stone products were entered under subheading 6802.91.05, HTSUS. The stone products in this entry were liquidated in two different subheadings on March 4, 1991. The Nero Assoluto stones were classified under subheading 6802.99.00, HTSUS, and the rest of the stone products were classified under subheading 6802.92.00, HTSUS. The protestant states that the Nero Assoluto stones are granite and should be classified accordingly. However, as stated above and according to the entry documents, the Nero Assoluto stones were identified as marble at time of entry by the protestant.

Item #24, the Karnazeiko and Corinthos stone products were entered under subheading 6802.91.05, HTSUS as marble slabs, and under subheading 6802.91.15, HTSUS, as marble tiles. On March 22, 1991, these stone products were liquidated under 6802.92.00, HTSUS. The Karnazeiko stones were found to be made of limestone and had beveled edges of 1.3, 1.2, 1.3, and 1.0 mm in Laboratory Report No. 3-91-30833-001 dated March 13, 1991. The Corinthos stones were also found to be made of limestone and had beveled edges of 1.5, 1.1, 1.2 and 1.3 mm in Laboratory Report No. 3-91- 30834-001 dated March 13, 1991. The protestant contends that all marble is in the form of limestone, but is not known as true limestone.

Items #25 and #26 involve the Rosa Tea stone products which were entered under subheading 6802.91.05, HTSUS. On April 10, 1991, the Rosa Tea stones were liquidated under subheading 6802.92.00, HTSUS. The protestant contends that the Rosa Tea stones should be classified as marble and not as limestone.

ISSUE:

I. Was the protest timely filed for each of the protested entries pursuant to section 174.12(e), Customs Regulations (19 CFR 174.12(e))?

II. Are the stone products classified under heading 6802, HTSUS, as marble, limestone or serpentine?

III. Are the White Gioia stones properly classified as marble slabs or marble tiles under subheading 6802.91, HTSUS?

LAW AND ANALYSIS:

I. Timely Filing of Protest

Protests against decisions of the appropriate Customs officers must be in conformity with applicable statutory and regulatory requirements. The time period for filing a protest is clearly stated in section 174.12(e), Customs Regulations (19 CFR 174.12(e)). In that section of the Customs regulations, it is stated:

Protests shall be filed, in accordance with section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90 days after either:

(1) The date of notice of liquidation or reliquidation in accordance with sections 159.9 or 159.10 of this chapter....

Pursuant to 19 CFR 174.12(e) protestant's items #20 and #23 were not timely protested within 90 days from the date of notice of liquidation. Item #20 was liquidated on February 15, 1991, and item #23 was liquidated on March 4, 1991. However, both of these entries were protested on June 14, 1991. The time period which elapsed between the date of the notice of liquidation and the date of the filing of the protest is greater than the 90 day period allowed for the filing of the protest. Therefore, this protest for items #20 and #23 was not timely filed.

II. Geological Name Classification

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 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 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 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. The 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 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'. 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 various laboratory reports have revealed that the Rosa Tea stones (items #21, #25 and #26), Karnazeiko stones, and Corinthos stones (item #24) are geological limestone and that the Rosso Levanto stones (item #22) are geological serpentine called "ophite." According to HRL 085266 and the ENs, stones are classified based on their geological makeup. Since geological limestone and geological serpentine are different stones than geological marble, the stones cannot be classified as entered by the protestant. The Rosa Tea, Karnazeiko and Corinthos stones are properly classified under subheading 6802.92.00, HTSUS, which provides for "...Other...Other calcareous stone" and the Rosso Levanto stones are classified under subheading 6802.99.00, HTSUS, which provides for "...Other...Other stones."

III. Slabs vs. Tiles

The next issue to be decided is whether the White Gioia stones in item #22 are considered to be marble slabs or marble tiles. Marble stones are classified in Chapter 68 making the Chapter 68 notes applicable to the tariff classification of the White Gioia stones. Additional U.S. Note 1 to Chapter 68 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.

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."

"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, to facilitate 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 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. See, HRL 951047 dated September 17, 1992.

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.

Laboratory Report 3-91-30721-001, dated March 1, 1991, which examined the White Gioia stones, found that the marble edges were beveled 1.2 mm, 1.1 mm, 1.2 mm, and 1.0 mm. These beveled cuts are less than 3/32 of an inch. Additionally, the protestant has submitted evidence in support of "easing" in the form of statements that "the bevels are no wider than any other tile" and that "they all are made on the same machine." Based on the laboratory report and the limited evidence submitted by the protestant, the White Gioia stones are properly classified under subheading 6802.91.05, HTSUS, as "...Other...Marble, travertine and alabaster...Marble...Slabs."

HOLDING:

The protest to items #20 and #23 was not timely filed pursuant to 19 CFR 174.12(e). This part of the protest is denied.

The geological definition is used in determining the proper tariff classification of stones under the HTSUS. Therefore, the Rosa Tea (items #21, #25, and #26), Karnazeiko and Corinthos (item #24) stones were properly classified under subheading 6802.92.00, HTSUS, which provides for "...Other...Other calcareous stone", and the Rosso Levanto (item #22) stones were properly classified under subheading 6802.99.00, HTSUS, which provides for "...Other...Other stones." This part of the protest is denied.

The White Gioia (item #22) stones are properly classified under subheading 6802.91.05, HTSUS, which provides for "...Other...Marble, travertine and alabaster...Marble...Slabs." This part of the protest is granted.

This protest should be granted in part and denied in part according to the above holding. 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

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