CLA-2 CO:R:C:M 952679 KCC

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

RE: Protest No. 1401-92-100115; stone product; geological designation; HRL 085266; EN 25.15; serpentine; laboratory report

Dear Sir:

This is in response to the Application for Further Review of Protest No. 1401-92-100115 dated July 21, 1992, which pertains to the tariff classification of stone products under the Harmonized Tariff Schedule of the United States (HTSUS).


The article under consideration is a stone product described as "polished green gressoney." Upon importation into the U.S., the entry was liquidated under subheading 6802.99.00, 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 stone."

This determination was based on Customs laboratory report #4-92-22013-001 dated May 27, 1992, which found that the polished green gressoney stone measuring 9 by 10 by 1 centimeters was made of serpentine (carbonated), and was not an agglomerated stone. The serpentine stone was further described as having one polished surface and cut edges which were beveled from 0.0320 to 0.0625 of an inch.

The protestant, Centex-Simpson Construction, contends that the stone is marble and, therefore, is properly classified under subheading 6802.91.05, HTSUS, which provides for "...Marble, travertine and alabaster...Marble...Slabs." As evidence that the stone is marble, the protestant has submitted a report from the University of Richmond, the Lora Robins Gallery of Design from Nature. The analyst opined that the stone submitted to him by the protestant was marble.

His opinion was based on the fact that the sample actively reacted with hydrochloric acid, had a hardness of 3 and that its fluorescence was that of calcite. The analyst states that all of these factors describe marble rather than serpentine which has a hardness of 2.5 and does not react with hydrochloric acid.


Are the stone products classified under heading 6802, HTSUS, as marble or as serpentine?


Under the Tariff Schedule of the United States (TSUS) (the precursor tariff schedule 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 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 their 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 Harmonized Commodity Description and Coding System Explanatory Notes ((ENs) of the HCDCS) constitute the official interpretation of the tariff at the international level. The ENs to heading 2515, HTSUS state that his 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'." HCDCS, Vol. 1, p. 191. However, granite is provided for under heading 2516, HTSUS, which provides for inter alia, granite.

In the instant case, the Customs laboratory report has revealed that the polished green gressoney stone is geological serpentine (carbonated). Therefore, small amounts of the carbonate in the stone would cause a reaction to hydrochloric acid as found in the protestant's report. Additionally, Customs laboratory conducted an X-ray emission test and a microscopic examination of a thin section of the sample. Based on all the tests and examination, Customs laboratory determined that the sample was geological serpentine.

According to HRL 085266 and the ENs, stones are classified based on their geological makeup. Since geological serpentine is a different stone than geological marble, the stone cannot be classified as entered by the protestant. The green gressoney is properly classified under subheading 6802.99.00, HTSUS, which provides for "...Other...Other stones."

In cases such as this, where a party 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 their geological make up, the same laboratory analysis must be executed 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 of merchandise.


The geological definition is used in determining the proper tariff classification of stones under the HTSUS. Therefore, the green gressoney is properly classified under subheading 6802.99.00, HTSUS, which provides for "...Other...Other stones." This protest should be denied in full. 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
Commercial Rulings Division