Request for Internal Advice no. 12/013; Classification of certain Stone Slabs; Heading 6802, HTSUS; Laboratory Testing

HQ H219348 June 26, 2014 CLA-2 OT:RR:CTF:TCM H219348 HkP CATEGORY: Classification TARIFF NO: 6802.93.00 Port Director Port of Houston U.S. Customs and Border Protection 2350 N. Sam Houston Parkway, E. Houston, TX 77032 RE: Request for Internal Advice no. 12/013; Classification of certain Stone Slabs; Heading 6802, HTSUS; Laboratory Testing Dear Port Director: This is in response to your memorandum forwarding Request for Internal Advice, No. 12/013, dated February 6, 2012, filed by counsel on behalf of Verona Marble Company. At issue is the methodology used by U.S. Customs and Border Protection, Laboratories and Scientific Services (“LSS”), to determine the identity of certain slabs of stone classified under heading 6802 of the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: According to the information provided, the subject merchandise is slabs of stone from Brazil or India known in the trade as granite. The stones have names such as “New Venetian Gold”, “Typhoon Bordeaux”, “Santa Cecilia Classic”, “Verde Labrador”, “Gold Brasil” (also known as “Venetian Gold”), “Sienna Bordeaux”, “Lapidus”, “Copper Canyon”, “Persian Cream”, “Absolute Black”, “River White”, “Ubatuba”, “Floral Fantasy”, “Star Galaxy”, and “Black Pearl”. Samples of New Venetian Gold, Lapidus Brown, and Santa Cecilia were submitted to LSS for testing to determine whether the stones were geologically granite or other stone. LSS found the stones to be granite, based on testing carried out in accordance with CBP Laboratory Methods, CBPL 25-01, which incorporates the International Union of Geological Sciences (“IUGS”) Subcommission on Igneous Rocks Principles and Recommendations on the Classification and Nomenclature of Igneous Rock. Copies of LSS’ reports were provided. CBPL 25-01 incorporates both qualitative (non-numeric/descriptive) and quantitative (numerical/modal) methods of analysis for rocks and minerals. The qualitative analysis method starts with a description of the stone that notes its colors, fossils, foliation, or other features, and any form of surface working, based on unaided visual examination. Next, a screening test is performed to identify substances with common properties. The screening test for stones containing feldspar, which is present in granite and related rocks, is staining with a variety of reagents. Different components of the stones react to staining by appearing as different colors; red indicates the presence of plagioclase, and yellow the presence of alkalai feldspar. Quartz reacts to staining by not changing color and its reaction to staining is described by the LSS as “clear/colorless/smoky”. At this stage of qualitative analysis, CBPL 25-01 also allows for the use of X-ray Fluorescence (“XRF”) to determine the composition of mineral particles in the stone, in addition to or instead of staining. An XRF spectrometer is an X-ray instrument that works on wavelength-dispersive principles and is typically used for bulk analyses of larger fractions of geological materials. In order to conduct an XRF analysis, the laboratory typically either chips or cuts the stone or grinds a representative portion of the stone to a powder, which is then placed in a sample holder or pressed into a pellet. In this case, chips of stone were analyzed. When the sample is excited by the X-ray beam, the sample emits X-rays along a spectrum of wavelengths characteristic of the types of elements present in the sample. The intensity of the energy is proportional to the abundance of the element in the sample. The exact proportion of each element is derived by comparison to mineral or rock standards, the composition of which is known from prior analyses by other techniques. In this case, both staining and XRF were used to qualitatively analyze all samples, which were then also quantitatively analyzed. Under CBPL 25-01, the quantitative determination of minerals in rocks begins by visually estimating the relative area occupied by each mineral, based on a photograph of the sample. The next step is “point counting”, a statistical technique that involves looking at a large number of points on the photograph, recording the minerals seen at each point and then assembling a component description from all the information recorded. When a sample appears to have visually different sections, LSS makes a quantitative determination for each section and averages the results by mineral. For the Santa Cecilia and Lapidus samples, a planimeter was used to point count the areas of quartz, alkali feldspar, and plagioclase feldspar reflected by the colored or colorless sections of the photographs. The Santa Cecilia sample was analyzed based on the average of two samples taken from visually different sections of the same stone. In the case of the New Venetian Gold samples, a planimeter was not used to point count. Instead, the photographs were cut into pieces based on color, or lack thereof, and each color group was weighed. One of the New Venetian Gold samples was analyzed based on the average weight of colored sections of photographs taken of three different sections of the same sample. The IUGS testing protocol is then used to determine whether the rock specimens are granite. It utilizes a QAP (quartz, alkali feldspar, and plagioclase feldspar) ternary diagram to classify igneous rocks with visible mineral grains, such as granite, based on their feldspar and quartz content. Under this protocol, the percentage of each material is determined and lines are drawn on the diagram to mark the values of Q (quartz) and P (plagioclase feldspar). The point where the lines meet on the diagram determines the identity of the rock being analyzed. As previously stated, LSS found that the samples they tested according to the described CBPL 25-01 protocol were geologically granite. The importer had samples of Santa Cecilia, New Venetian Gold, and Lapidus Brown tested by an outside laboratory, which found that the stones were not geologically granite. The reports stated that their test method was thin section petrographic analysis but did not provide an explanation of the process followed by the outside laboratory. It was stated in each report that the findings were “based on the IUGS classification scheme for plutonic igneous rocks”. Each test report was prefaced with conditions and qualifications, which stated, in relevant part: The results of any x-ray diffraction, petrographic or core analysis test are necessarily influenced by the condition and selection of the samples to be analyzed. It should be recognized that geological samples are commonly heterogeneous and lack uniform properties. Mineralogical, geochemical and/or petrographic data obtained for a specific sample provides compositional data pertinent to that specific sampling location. Such “site-specific data” may fail to provide adequate characterization of the range of compositional variability possible within a given project area, thus the “projection” of these laboratory findings and values to adjoining, “untested” areas of the formation or project area is inherently risky, and exceeds the scope of the laboratory work request. In an Affirmation made by a mineralogist employed by the outside laboratory, which was submitted in support of the instant Request for Internal Advice, it was explained that a thin section is a single two-dimensional slice through the stone, and that thin section petrographic analysis is a microscopic assessment of the optical mineralogy, crystalline texture, fabric, weathering condition and pore system properties of stone. In this type of analysis, a thin section is prepared, a microscopic survey performed in both plane polarized and cross polarized light, a representative cross section line is established, and the size of grains/crystals is measured. To determine the crystalline nature of igneous rocks, such as the subject samples, the laboratory refers to the Atlas of Igneous Rocks and their Textures, which is described on its back cover as a full-color handbook of photographs of various igneous rocks with brief descriptions, designed to be used as a laboratory manual both by elementary students of earth sciences and by more advanced students and teachers as a reference work. Once all the individual mineral species present in a given sample are identified, proportions of the respective components are visually estimated on the basis of surface area representation on the slide. According to the mineralogist, this technique provides a statistically representative population of the stone’s crystalline constituents. ISSUE: Whether there is sufficient evidence to overcome the determination by LSS that the stone slabs are geological granite of subheading 6802.93, HTSUS, rather than other stone of subheading 6802.99, HTSUS. LAW AND ANALYSIS: The provisions at issue are: 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: 6802.93.00 Granite …. 6802.99.00 Other stone …. Pursuant to 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 477 F.2d 1396, 1398 (1973) (hereinafter Alcoa), citing United States v. Gage Bros., 1 Ct. Cust. Appls. 429, T.D. 31503. Absent a conclusive showing that the testing method used by the Customs laboratory is in error, or that the Customs' laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399. In Alcoa, the importer was able to overcome the presumption of correctness afforded Customs by clearly establishing that the samples tested by the importer were taken from the shipment under question as it arrived in the U.S. Moreover, the samples were analyzed by the importer’s own chemists as well as two independent laboratories using the published Customs Laboratory Method, which was considered reliable by both sides. Cf. Headquarters Ruling Letter (“HQ”) 962740 (Feb. 14, 2002), in which the importer failed to demonstrate that the samples tested by an outside laboratory were samples from the entry at issue, or that the methods used by LSS were in error, or that the results were erroneous. In this case, LSS analyzed several samples of stones from the covered entries and determined that they were geologically granite. Laboratory tests conducted on behalf of the importer indicated that the stones were not granite but granodiorite. Granite and granodiorite are classified in different subheadings of heading 6802, HTSUS. Counsel argues that LSS’ results should be disregarded because CBP’s analysis is “less than sufficient” to evaluate igneous or any other type of stone in that the mineralogy of the entire stone was not taken into account, just one surface. In particular, counsel objects to LSS’ use of the IUGS testing protocol, which he describes as “two dimensional”. Counsel also objects to CBP determining each sample’s mineral content by point counting, a known statistical method in geology that involves weighing color-grouped pieces of photographs or the use of a planimeter, and by XRF analysis, which he states does not provide an assessment of mineralogy. Counsel argues that the results from the thin section analysis performed by the outside laboratory should prevail because it provides an accurate petrographic view of the stone. As described in the Affirmation of the mineralogist employed by the outside laboratory, the petrographic analysis performed by that laboratory consisted only of analyzing a single two-dimensional slice of each sample under a microscope, even though the laboratory notes on each report it prepares that geological samples are commonly heterogeneous and lack uniform properties, and that data obtained for a specific sample is pertinent to the specific sampling location and, thus, the projection of findings and values to adjoining untested areas exceeds the scope of the laboratory work request. Specifically, the analysis performed by the outside laboratory entailed the measurement of grain size, the identification of minerals, and the visual estimation of the proportions of minerals, and comparing the findings to photographs of the common textures of igneous rocks found in the Atlas of Igneous Rocks and their Textures. On the other hand, LSS’ analyses of the stones consisted of several steps, described in CBPL 25-01. First, the laboratory conducted unaided visual examinations of the stones. Next, it used two methods to determine the composition of mineral particles in the stones: (1) reagents were applied to the stones to elicit a chemical reaction so that different elements could be identified, and then (2) the samples were subjected to XRF analysis by which an X-ray beam was used to excite the samples, causing them to emit X-rays along a spectrum of wavelengths characteristic of the types of elements present in each sample. Then, a visual estimation of the relative area of each sample occupied by each mineral was performed, after which the statistical method of point counting was used to determine the actual amount of minerals present, based on either measurements taken by planimeter or on the weight of variously colored sections of photographs, as previously explained. LSS then applied an internationally recognized and accepted standard on the classification of igneous rocks, Recommendations of the IUGS on the Systematics of Igneous Rocks, to their findings. The results of these analyses indicated that the stones sampled were granite. In this case, although the importer has provided results contrary to those of LSS, the importer has failed to establish a prima facie case that the methods used by LSS are in error or that the results are erroneous. Exxon, 462 F. Supp. 378. In cases such as this, where an outside report is submitted that differs from the LSS report, the LSS report cannot be disregarded and takes precedence over the outside report. See HQ 962740 supra, citing Customs Directive 099 3820-002, dated May 4, 1992: Customs cannot rely on outside reports, which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, generally Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported in to the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise. See also HQ 957282 (Mar. 28, 1995), and HQ 958346 (Feb. 6, 1996). Moreover, unlike the plaintiff in Alcoa, the importer has not provided any evidence that the outside laboratory tested samples from the entries at issue. Based on the facts in this case, we find that the LSS’ reports takes precedence over the results of the tests administered by the outside laboratory. The stone slabs were correctly classified in subheading 6802.93.00, HTSUS. HOLDING: The stone samples submitted to LSS are geologically granite. They are classified under subheading 6802.93.00, HTSUS, which provides for: “Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801 …; Other; Granite. The column one general rate of duty is 3.7 percent ad valorem. This decision should be mailed by your office to the party requesting Internal Advice no later than 60 days from the date of this letter. On that date, Regulations and Rulings, Office of International Trade, will make the decision available to CBP personnel and the public at www.cbp.gov, by means of the Freedom of Information Act and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division