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HQ 954374

August 18, 1993

CLA-2 CO:R:C:M 954374 KCC


TARIFF NO.: 6802.92.00

District Director
U.S. Customs Service
1 East Bay Street
Savannah, Georgia 31401

RE: Protest No. 1703-93-100072; Negro Marquina; marble; limestone; geological designation; EN 25.15; HRL 085266; laboratory report

Dear District Director:

This is in response to the Application for Further Review of Protest No. 1703-93-100072, which pertains to the tariff classification of Negro Marquina stone under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for examination.


The Negro Marquina stone entry was liquidated on March 19, 1993, under heading 6802.92.00, 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...Other calcareous stone."

In a protest timely filed on April 20, 1993, Intercontinental Marble Corporation, contends that the Negro Marquina stone is marble and, therefore, is properly classified under subheading 6802.91.05, HTSUS, which provides for "...Other... Marble, travertine and alabaster...Marble...Slabs." The protestant states that according to local geological experts and numerous authoritative sources on stone products, Negro Marquina is not limestone, but marble. The protestant contends that Negro Marquina stone has undergone metamorphic change including widespread overgrowth of new carbonate crystals so as to indicate the characteristics of marble. In support, the protestant has submitted a report by Dr. Tim LaTour, Associate Professor of Geology at Georgia State University and various definitions of marble.


Are the Negro Marquina stones classified as marble under subheading 6802.91.05, HTSUS, or as other calcareous stone under subheading 6802.92.00, HTSUS?


Under the Tariff Schedules of the United States (TSUS) (the precursor 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 (pg. 191), 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'. However, granite is provided for under heading 2516, HTSUS, which provides for, inter alia, granite.

In the instant case, Customs Laboratory Report No. 4-93-20693- 001 dated May 6, 1993, has revealed that the Negro Marquina stones are geological limestone. The laboratory report found that a sample of Negro Marquina, a black stone measuring 10 cm by 9 cm by 2 cm, was composed of limestone. The laboratory report further stated that the Negro Marquina was not agglomerated. One surface of the Negro Marquina was polished and the sides were cut but not polished. The Negro Marquina sample did have beveled edges of 0.0195 inch to 0.0280 inch.

According to HRL 085266 and the ENs, stones are classified based on their geological makeup. Since geological limestone is a different stone than geological marble, the stones cannot be classified as entered by the protestant. The Negro Marquina stones are properly classified under subheading 6802.92.00, HTSUS, which provides for "...Other...Other calcareous stone."

In cases such as this, where the protestant submits an outside report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify stone products according to their geological make up, the same laboratory analysis must be used throughout Customs. Customs cannot rely on outside reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification.

Moreover, the protestant's expert has opined that the Negro Marquina stones "would be considered marble from a commercial point of view. The primary use of these rocks is apparently as polished stone, the most critical part of the definition of marble." As stated previously, to determine the proper tariff classification, Customs uses the commonly-accepted geological definition of stones. We do not accept marble's "commercial" definition of polished limestone or limestone capable of taking a polish which is espoused by the protestant.

Additionally, the protestant's expert opines that "a purely scientific definition is unfortunately ambiguous and presumable should not be used in the present context." We do not agree. Geologically, marble is a metamorphic rock resulting from the recrystallization of limestone. While limestone is a sedimentary rock possessing a great deal of fossil material, marble is a metamorphic rock with a high degree of crystallinity. Customs Laboratory has found numerous occasions that Negro Marquina does not possess the degree of crystallinity required of geological marble. Therefore, it is not classifiable as marble under subheading 6802.91.05, HTSUS


The geological definition is used in determining the proper tariff classification of stones under the HTSUS. Therefore, the Negro Marquina stones were properly classified under subheading 6802.92.00, HTSUS, which provides for "...Other...Other calcareous stone."

This protest should be denied. 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.


John Durant, Director

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