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HQ 953377




June 18, 1993
CLA-2:CO:R:C:M 953377 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.:6802.92.00; 6802.99.00;
6802.93.00; 6802.91.20; 6802.91.05

District Director
U.S.Customs Service
4430 E. Adamo Street, Suite 301
Tampa, Florida 33605

RE: Protest No. 1801-92-100012; Various stone articles; HRL's 085266, 085968, 087014, 087395, 086894; EN 25.15, 25.16

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 1801-92-100012 concerning your action in classifying and assessing duty on various stone products under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The stones were entered under subheading 6802.91.05, HTSUS, as marble. However, based on Customs lab tests, the merchandise was liquidated under various other subheadings. A protest was timely filed on March 18, 1992.

Protestant claims that all of the stones are polished limestone, which meets the commercial definition of marble, and as such should be classifiable as marble.

ISSUE:

Whether the various stones are classifiable as marble under subheading 6802.91.05, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). In consideration of the structure of the ENs for stone articles, several prior Headquarters Ruling Letters (HRLs) hold that stone is classified according to its geological composition.

The definitions of various stones are provided in the ENs to chapter 25. EN 25.15, p. 191, defines marble, travertine, serpentine, and other calcareous stone as follows:

Marble is a hard calcareous stone, homogeneous and fine- grained, often crystalline and either opaque or translucent. Marble is usually variously tinted by the presence of mineral oxides (coloured veined marble, onyx marble, etc.), but there are pure white varieties.

Travertines are varieties of calcareous stone containing layers of open cells.

...[t]he heading covers other similar hard calcareous monumental or building stones, provided their apparent specific gravity is 2.5 or more... Calcareous monumental or building stones of apparent specific gravity of less than 2.5 are classified in heading 25.16.

...[t]his heading also excludes:
(a) Serpentine or ophite (a magnesium silicate sometimes called marble) (heading 25.16)

The EN 25.16, p. 192a, states in pertinent part:

Granite is a very hard, granular igneous rock formed by the agglomeration of quartz crystals with feldspar and mica. It varies in colour (grey, green, pink, red, etc.), according to the relative proportions of these three substances and the presence of iron oxide or manganese oxide.

If travertine, other calcareous stone, serpentine, and granite were intended to be considered marble, they would not have been separately defined. Moreover, none of these definitions suggest that these stones are a type of marble, and one stone, serpentine, is specifically excluded from the heading that contains marble's definition.

In Headquarter's Ruling Letter (HRL) 085266, dated September 20, 1990, we held that under the HTSUS, stone products are classified according to their geological nature. Under the TSUS, stones were often classified by their trade names whether or not they met the geological definition of the stone. However, under the HTSUS, it is imperative that the United States, whenever possible, define the various tariff terms in a manner consistent with all nations using the HTS. (see HRL 086894 dated 11/23/90)

Because limestone, serpentine, travertine, and granite are all distinct stones with different geological properties, and because Custom's lab reports indicate that Travertine Sovina, Verde Olimpo, Carrara White, Serpeggiante, Pink Fiorito, Cream Fiorito, Perlino Rosato, Travertine Silver, Bianco Sardo, and Etruscan Rose are not geological marble they are not classifiable as marble. (see also HRLs 085968, dated 3/14/90, 087014 dated 6/12/90, and 087395 dated 9/4/90.) The stones are classifiable in the subheadings which provide for their geological structure.

HOLDING:

The entries were liquidated correctly. We agree that the Calacatta Marble and Verdello are classifiable as marble and a rate reduction, as noted on the Custom's Form 6445A is appropriate.

The protest should be treated in accordance with the discussion above. A copy of this decision should be attached to the Customs Form 19 and provided to protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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