CLA-2 CO:R:C:M 952678 KCC

District Director
U.S. Customs Service
101 East Main Street
Norfolk, Virginia 23510

RE: Protest No. 1401-92-100098; marble; Additional U.S. Note 1 to Chapter 69; processing necessary to facilitate installation; slabs; HRL 950125; HRL 951047; beveling

Dear Sir:

This is in response to the Application for Further Review of Protest No. 1401-92-100098 dated July 7, 1992, which pertains to the tariff classification of marble products under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles under consideration are described on the invoice as "Arabescato Marble DIMS. 12"x12"x3/8" - Polished, Calibrated, Beveled." Upon importation into the U.S., the arabescato marble 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."

The protestant, Dernis International Marketing, contends that the arabescato marble, is properly classified under subheading 6802.91.05, HTSUS, which provides for "...Marble... Slabs." ISSUE:

Is the arabescato marble classified under subheading 6802.91.15, HTSUS, as other marble, or under subheading 6802.91.05, HTSUS, as marble slabs?

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."

"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 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 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 No. 4-93-20182-001, dated December 9, 1992, which examined the arabescato marble found that the white stone sample measuring 30 x 30 x 1 cm is of marble and is not agglomerated stone. The edges of the sample were found to be beveled to 0.0310 to 0.0495 of an inch which is less than 3/32 of an inch (3/32 = 0.09375). Based on the laboratory report, the arabescato marble is properly classified under subheading 6802.91.05, HTSUS, as "...Other...Marble, travertine and alabaster...Marble...Slabs."

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...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