HQ 954374: Protest No. 1703-93-100072; Negro Marquina; marble; limestone; geological designation; EN 25.15; HRL 085266; laboratory report

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                             HQ 954374 

                           August 18, 1993

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

CATEGORY:  Classification

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.

FACTS:

     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.  






ISSUE:

     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?

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 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

HOLDING:

     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.

                                Sincerely,



                                John Durant, Director