CLA-2 CO:R:C:M 957195 KCC

District Director
U.S. Customs Service
P.O. Box 1490
Room 218
St. Albans, Vermont 05478

RE: Protest 0201-94-100212; Kinawa rough block stone; 2516.11.00; crude or roughly trimmed granite; geological designation; EN 25.15; HRL 085266; HRL 086894; HRL 954358; HRL 954912; HRL 955738; laboratory report

Dear District Director:

This is in response to Protest 0201-94-100212, which pertains to the tariff classification of Kinawa rough block stone under the Harmonized Tariff Schedule of the United States (HTSUS). Additional letters with attachments from the protestant to its broker dated March 30, and April 12, 1994, were taken into consideration in rendering this decision.

FACTS:

The Kinawa rough block stone entry was liquidated on February 18, 1994, under subheading 2516.90.00, HTSUS, as other monumental or building stone. This classification was based on Customs Laboratory Report #3-94-30237-001 dated December 8, 1993, which was prepared after the Kinawa rough block stone was examined. The Laboratory Report concluded that:

THE SAMPLE, A CRUDE ROCK, IS COMPOSED OF GNEISS.' IT IS NOT COMPOSED OF GRANITE.

In a protest timely filed on May 13, 1994, the protestant states that the Kinawa rough block stone is granite and, therefore, is properly classified under subheading 2516.11.00, HTSUS, as crude or roughly trimmed granite. The protestant contends that Laboratory Report #3-94-30237-001 is inadequate because it does not refer to the source of the material, the structure of the material or its appearance. Furthermore, the protestant states that since the composition of gneiss is sometimes similar to the composition of granite, these two stones are geologically identical and should be classified similarly.

The competing subheadings at issue are:

2516 Granite, porphyry, basalt, sandstone and other monumental or building stone, whether or not roughly rimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape...

2516.11.00 Granite...Crude or roughly trimmed.

2516.90.00 Other monumental or building stone.

ISSUE:

Is the Kinawa rough block stone classified as crude or roughly trimmed granite under subheading 2516.11.00, HTSUS, or as other monumental or building stone under subheading 2516.90.00, HTSUS?

LAW AND ANALYSIS:

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 20, 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. See also, HRL 086894 dated November 23, 1990; HRL 954358 dated August 18, 1993; HRL 954912 dated November 5, 1993, and; HRL 955738 dated March 30, 1994. Although each of the referenced HRLs concerns the tariff classification of worked stone, crude or rough stone is also classified pursuant to its geological definition.

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. In understanding the language of the HTSUS, the HCDCS Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). 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 #3-94-30237-001 dated December 8, 1993, has revealed that the Kinawa rough block stone is geological gneiss. The laboratory report examined whether the sample of Kinawa rough block stone was granite, i.e., " PLEASE CONFIRM GEOLOGICAL CONTENT OF STONE." The laboratory report found that the sample was gneiss, not granite. According to HRL 085266 and the ENs, stones are classified based on their geological makeup. Since geological gneiss is a different stone than geological granite, the Kinawa rough block stone cannot be classified as entered by the protestant. The Kinawa rough block stone is properly classified under subheading 2516.90.00, HTSUS, as other monumental or building stone.

The protestant states that since the composition of gneiss is sometimes similar to the composition of granite, these two stones are geologically identical and should be classified

similarly. We are of the opinion that this position is incorrect. Geological texts indicate that gneiss and granite are geologically different. While granite is an igneous rock, gneiss is a metamorphic rock. Gneiss is developed from the metamorphosis of various stones which may include granite, shale or other rocks. However, gneiss is a unique stone distinct from granite. Gneiss may contain bands or layers developed from several stones and some of the minerals in gneiss may be similar to some of the minerals in granite. However, gneiss is physically different from granite.

We note that in those instances when gneiss is developed from granite, the gneiss is recrystallized granite. The process of recrystallization makes the gneiss a unique and different stone. The gneiss is physically different from granite even when it has a similar chemical composition. Since the physical forms of granite and gneiss are clearly different, geological texts regard these items as different stones. Igneous rocks, i.e., granite, and metamorphic rocks, i.e., gneiss, are regarded as geological different. See, Rocks and Minerals, Frederick Pough, 4th edition, 1976; Simon and Schuster's Guide to Rocks and Minerals, Annibale Mottana, 1977; The Henry Holt Guide to Minerals, Rocks and Fossils, W.R. Hamilton, 1974; Rocks, Minerals and Fossils of the World, 1990, and Rocks and Minerals, 1992, Chris Pellant, and; Rocks and Minerals, Pat Bell and David Wright, 1985.

In cases such as this, where the protestant submits an independent report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the independent 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.

HOLDING:

The geological definition is used in determining the proper tariff classification of stones under the HTSUS. Therefore, the Kinawa rough block stone is properly classified under subheading 2516.90.00, HTSUS, as other monumental or building stone.

This protest should be Denied. 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 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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division