CO:R:C:G 088467 NLP

Area Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266

RE: Decision on Application for Further Review of Protest Nos. 3801-89-002859 and 3801-0-001677, dated November 8, 1989 and March 19, 1990, respectively; marble tiles.

Dear Sir:

Protest Nos. 3801-89-002859 and 3801-0-001677 were filed against your decision to classify tiles, entry numbers G-17- 0016031 and G-17-0014925-6, in subheading 6802.91.15 HTSUSA, 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, other.

FACTS:

These protests for further review concern Crema Marfil, Coralto and Marron tiles imported by Terazzo and Marble Supply from Marmoles Visemar, located in Spain. The tiles were invoiced as marble. A Customs laboratory tested samples of the tiles and determined that the Crema Marfil and Coralto tiles are geologically composed of limestone. Limestone and marble have a different geological makeup. Limestone is a sedimentary rock, while marble is a metamorphic rock formed when limestone recrystallizes in the earth over a long period of time. Marble is highly crystalline and resistant to weathering, while limestone is not. The Marron Tile is composed of brecciated dolomite. None of the tiles are agglomerated. The tiles have been polished and have beveled edges and measure 30.5 X 30.5 X 1 cm.

The protestant maintains that the tiles are composed of marble and are not further worked. As a result, the tiles would be classifiable in subheading 6802.21.5000, HTSUSA, which provides for other monumental or building stone and articles thereof, simply cut or sawn, with a flat or even surface, marble, travertine and alabaster, other. The rate of duty is 2.1 percent ad valorem. It is Customs position that the instant tiles are not composed of marble and have been further worked beyond cutting or sawing. Therefore, the tiles would be classifiable in subheading 6802.92.00, HTSUSA, which provides for other calcareous stone, other than those simply cut or sawn. The rate of duty is 6 percent ad valorem.

ISSUE:

Whether the tiles at issue are classifiable as marble or other calcareous stone.

Whether the tiles are simply cut or sawn, or whether they are further worked.

LAW AND ANALYSIS:

Headquarter's 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; rather, it was classifiable in subheading 6802.92, HTSUSA, 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 HTSUSA.

There are other stones that are classified under the HTSUSA 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 HTSUSA. The Explanatory Notes constitute the official interpretation of the tariff at the international level. The Explanatory Notes to Heading 2515, HTSUSA, state that this heading provides for marble, travertine, ecaussine and other calcareous monumental or building stone. The Explanatory Notes 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, HTSUSA, which provides for, inter alia, granite.

In the instant case, the laboratory reports have revealed that these tiles are geological limestone. According to HRL 085266 and the Explanatory Notes, stones are classified based on their geological makeup. Since geological marble and geological limestone are different stones, the tiles cannot be classified as marble in subheading 6802.21. The tiles must be classified as other calcareous stones.

The next issue to be decided is whether the instant tiles are simply cut or sawn or are further worked. On behalf of the importer, the Customs Broker, T.J. Filbin, argues that the instant tiles are not further worked and should be classified in subheading 6802.21.50, HTSUSA. T.J. Filbin points to HRL 083619, dated March 30, 1989, which dealt with the classification of a marble tile that had been polished, beveled and gauged. This tile was classified in subheading 6802.91.1500, HTSUSA, which provides for marble, other than simply cut or sawn. As a result, they argue that subheading 6802.91, HTSUSA, should only be applied when three operations have been performed on the tile- polishing, beveling and gauging. Therefore, since the instant tiles are marble and are not polished, beveled and gauged, they are not classifiable in subheading 6802.91, HTSUSA, but in subheading 6802.21, HTSUSA. The language of the HTS clearly indicates that subheading 6802.21, HTSUSA, only covers items which are simply cut or sawn and are made of marble, travertine or alabaster. Therefore, any operation performed on stones which goes beyond simple cutting or sawing, such as beveling or polishing, precludes classification of the product in subheading 6802.21, HTSUSA. The product in HRL 083619 simply happened to be beveled, polished and gauged. There is nothing in that ruling which indicates that all three of these operations have to be performed before subheading 6802.91, HTSUSA, would be applicable. Thus, since the instant tiles are beveled and polished and are composed of geological limestone, not geological marble, they are classifiable in subheading 6802.92, HTSUSA, which provides for other calcareous stone, other than simply cut or sawn.

HOLDING: The instant tiles are classifiable in subheading 6802.92.00, HTSUSA, which provides for other calcareous stone, other than simply cut or sawn. The rate of duty is 6 percent ad valorem.

The protest is denied. A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division