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HQ 951047

September 17, 1992

CLA-2 CO:R:C:M 951047 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6802.91.05

U.S. Customs Service
Room 200, Protest Office
423 Canal Street
New Orleans, Louisiana 70130

RE: Protest No. 2002-91-000534; marble; Additional U.S. Note 1 to Chapter 68; processing necessary to facilitate installation; slabs; tile; 950125; Dushoff Distributing Corp.; Selectile Co., Inc.; easing; beveling

Dear District Director:

This is in response to the request for Further Review of Protest No. 2202-91-000534 dated May 6, 1991, regarding the tariff classification of marble under the Harmonized Tariff Schedule of the United States (HTSUS). An additional submission dated May 22, 1992, regarding the edge cutting process, photographs and samples was considered in our review of the matter.

FACTS:

The merchandise under consideration is marble. Upon importation into the U.S., the entry was liquidated under subheading 6802.91.15, 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...Marble, travertine and alabaster...Marble...Other."

This determination was based on Customs laboratory report #5-91-30674-001 dated January 31, 1991, which found that the marble was subject to a beveling operation which removed more than 1/32 of an inch from the marble edges. For stone to be defined as "slabs" pursuant to Additional U.S. Note 1 to Chapter 68, Customs has determined that cutting, beveling, or processing of the edges of tile greater than 1/32 of an inch is more processing than is necessary to facilitate installation. Therefore, the marble tile under consideration was not considered to be "slabs" for tariff purposes.

The Protestant, London Universal, contends that the marble is properly classified under subheading 6802.91.05, HTSUS, which provides for "...Marble, travertine and alabaster...Marble... Slabs." Protestant states that the only processing performed on the edges is a slight rubbing, called "easing", to remove the sharpness caused by the saw cut. Furthermore, the protestant states that in the marble industry an "eased edge" is not a beveled edge as the amount of abrasion applied to the edge of the tile is the absolute minimum necessary to remove the rough cut edges of the tile. The protestant states that the edge finishing operation is not a high precision process. The degree of the edge removal is dependent upon the degree of pressure applied by the grinding wheels onto the edge. Very often the pressure of the grinding wheels can vary slightly during the working day causing more or less of the edge to be removed.

The protestant states that for a level floor, tiles are required to be set very tightly next to each other with a minimum grout joint. In this situation, the edge of the tile is "eased" with the absolute minimum cut of the edges. The protestant opined that the range on the "eased edge" would be less than 1/16 of an inch. Additionally, for an non-level or concrete floor, the tiles are required to be set further apart allowing for a wider grout joint of 1/4 of an inch. In this situation, a beveled edged is necessary so that one does not trip over the edge of the tile once its installed. The protestant opined that an edge is beveled beyond the processing necessary to facilitate installation if it is 3/32 of an inch or more.

The protestant submitted a description of how tile is produced and photographs of the machine that produces the edges of the marble. Additionally, samples of its "eased edge" tile, beveled tile, and tile without a worked edge were submitted for examination.

ISSUE:

Does the marble have edges processed to facilitate installation which are classified under subheading 6802.91.05, HTSUS, as slabs, or are the edges beveled, rounded or otherwise processed which are classified under subheading 6802.91.15, HTSUS, as other marble?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

The marble in this case is properly classified within Chapter 68, making the Chapter 68 notes applicable to this classification. Additional U.S. Note 1 to Chapter 68 states:

For 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."

In Dushoff Distributing Corp. v. United States, 71 Cust. Ct. 158, C.D. 4489 (1973), the U.S. Customs Court held that marble saddles, beveled for safety purposes and not to ease handling or aid in installation as thresholds, were not classifiable as marble slabs pursuant to Headnote 2, Schedule 5, part 1C, Tariff Schedules of the United States (TSUS) (the precursor note to Additional U.S. Note 1 to Chapter 68). The court read Headnote 2 to mean "it limits the processing beyond cutting to size and polishing to such as facilitates the placing or setting the stone pieces in question in their final location in the wall, floor or ceiling of a building." Id. at 163. The court further pointed out that the Tariff Classification Study of November 15, 1960 (schedule 5, p. 24) pointed out that the exception was intended to allow stone pieces whose edges had been "eased" for handling purposes to be classified as slabs. See also, Selectile Co., Inc. v. United States, C.D. 4513 (1974), which held that marble pieces which have been beveled for the purpose of creating articles which will fit together to form quirk mitered corners and not for the ease of handling or to facilitate installation are not "slabs" pursuant to the definition found in Headnote 2, Schedule 5, Part 1C, TSUS. The court sated an example of easing "might be the removal of the sharp arris by beveling or rounding...." Id. at 129.

"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, for Customs to facilitate the 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 examining the evidence submitted by the protestant and 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.

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. From the information presented, the marble at issue is properly classified under subheading 6802.91.05, HTSUS.

HOLDING:

The marble is properly classified under subheading 6802.91.05, HTSUS, as "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...Marble, travertine and alabaster...Marble... Slabs."

This protest should be granted. 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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