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HQ 958096



October 27, 1995

CLA-2 R:C:M 958096 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6802.99.00

Port Director
U.S. Customs
511 NW Broadway
Portland, OR 97209

RE: Protest 2904-95-100131; Serpentine slabs; Chapter 71; Additional U.S. Note 1 to Chapter 68; GEN ENs 3 to §XIV, Annex to §XIV; HRLs 951047, 950125

Dear Port Director:

The following is our decision regarding the request for further review of Protest 2904-95-100131 concerning your action in classifying and assessing duty on various serpentine slabs under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Protestant's submission indicates that the protested entries are for merchandise described as "dark green marble slabs 2cm thickness". Protestant states that the slabs are 95"x 65", polished but otherwise unfinished. They have no rounded corners nor are they beveled. They are rectangular in shape but not cut to fit or ready for installation. After importation, the slabs are contoured and cut by the purchasing contractor to be used for countertops, wainscotting and flooring. The port report indicates that the slabs are composed of geological serpentine. Customs lab reports of samples tested for composition or easing were not submitted.

The protest was timely filed on May 25, 1995, for entries liquidated on April 7, 1995. The entries were liquidated under subheading 7116.20.20, HTSUS, as articles of semi-precious stone. Protestant contends that the articles are classified as other worked monumental or building stone under subheading 6802.99.00, HTSUS.

The subheadings under consideration are as follows:

6802.99.00 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.........................6.5% 7116.20.20 Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed: Other: of semiprecious stones (except rock crystal)....... ......21%

ISSUES:

Are the stone slabs classifiable as articles of semi-precious stone or as monumental or building stone?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). 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...." Chapter 68, HTSUS, provides for articles of stone, plaster, cement, asbestos, mica or similar materials. Chapter 71, HTSUS, provides for natural or cultured pearls, precious or semi-precious stones, precious metals, metals clad with precious metals, and articles thereof; imitation jewelry; coin.

Both chapters provided for articles made from stone. However, the plain language of chapter 71 clearly indicates that stone identified as "precious/semi-precious" for tariff purposes, and articles made from it are classified in chapter 71. Furthermore, Note 1(d), Chapter 68 states that "this chapter does not cover: articles of chapter 71." Moreover, Note 1(a), Chapter 71 states that:

Subject to note 1(a) to section VI and except as provided below, all articles consisting wholly or partly:

(a) Of natural or cultured pearls or of precious or semi-precious stones (natural, synthetic or reconstructed)... are to be classified in this chapter.

The HTSUS is clear that classification of an article under Chapter 71, HTSUS, takes precedence over classification of an article under Chapter 68, HTSUS. Therefore, we must first determine whether the subject articles are identifiable as semi-precious stone articles for tariff purposes.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

General EN 3 to Section XIV (pg. 949), states, in pertinent part, that chapter 71 includes "in general, articles made wholly or partly of natural or cultured pearls, diamond or other precious or semi-precious stones (natural, synthetic or reconstructed), precious metals or metal clad with precious metal (headings 71.13 to 71.16)." EN Annex to Section XIV (pg. 968), lists "serpentine" as a precious or semi-precious stone.

Because the Annex identifies serpentine as a semi-precious stone, articles made of it are classifiable under heading 7116. However, the subject merchandise is imported in the form of building stone of serpentine. This form includes slabs and tiles. In this form it is not provided for in chapter 71. Rather it is specifically provided for in chapter 68.

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 6802.99.00, 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.

To determine the extent of the processing which would be acceptable for a slab, Customs 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 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. For further discussion of the "easing" determination, see, Headquarters Ruling Letter (HRL) 950125 dated January 7, 1992. Therefore, if the edge of a particular piece is 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 6802.99.00, HTSUS.

Based on the evidence submitted by protestant, it appears that if the subject slabs have been processed, it is merely to facilitate installation. Therefore, they are properly classified under subheading 6802.99.00, HTSUS, as other monumental or building stone.

HOLDING:

The serpentine slabs are classified under subheading 6802..99.00, HTSUS, as other building stone.

The protest should be GRANTED. 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, with the Customs Form 19, 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 the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the 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 the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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