HQ 962228

July 06, 1999

CLA-2 RR:CR:GC 962228ptl

CATEGORY: Classification

TARIFF NO.: 6801.00.0000

Port Director

U.S. Customs Service

1624 E. 7th Avenue

Suite 101

Tampa, FL 33605

RE: Protest 1801-89-100035; Granite Paving Stones.

Dear Port Director:

The following is our decision on Protest 1801-89-100035, against your
classification under the Harmonized Tariff Schedule of the United States
(HTSUS) of granite paving stones.

**FACTS**:

The merchandise under consideration consists of granite paving stones
each measuring approximately 3\"x3.5\"x4\". The goods were entered on
March 23, 1998, and the entry covering the imported merchandise was
liquidated on June 5, 1998, with classification under the provision for
setts, curbstones and flagstones, of natural stone (except slate) in
subheading 6801.00.0000, HTSUS, with duty at the general rate of 3.1
percent. A timely protest under 19 U.S.C. 1514 was received on July 9,
1998. The protestant protested the notice of action concerning Customs'
classification of the merchandise and asserted that the goods should
have been classified under the provision for granite, porphyry, basalt,
sandstone and other monumental or building

stone, whether or not roughly trimmed or merely cut, \... granite: crude
or roughly trimmed in subheading 2516.11.0000, HTSUS, with a free
general rate of duty. The protest also states "We claim the rate amount
plus interest and Harbor Fee, \$321.40." A sample article and importer's
brochures showing the use of the goods were provided to Customs.

**ISSUE**:

What is the classification of granite paving stones?

**LAW AND ANALYSIS**:

The law governing protests requires a protest to set forth "distinctly
and specifically \... each decision \... \[,\] \... the nature of each
objection and the reasons therefor \.... and \... any other matter
required by the Secretary \[of the Treasury\] by regulation" (19 U.S.C.
1514 (c)(1)(A) through (D)). The Customs Regulations issued under this
law require that "\[t\]he nature of, and justification for the objection
\[be\] set forth distinctly and specifically with respect to each
category, payment, claim, decision or refusal" (19 CFR 174.13 (a)(6)).

In the instant case, the Notice of Action dated prior to liquidation is
not, in itself, a matter subject to protest. However, since the protest
was filed after the date of liquidation and the goods were classified as
proposed by the Notice of Action, we will consider the protest as being
filed against Customs classification of the merchandise in the
liquidation of the entry (See, e.g., *Mattel, Inc. v. United States*, 72
Cust. Ct. 257, 262, C.D. 4547, 377 Fed.Supp. 955 (1974), "\... the court
\... has held that, however cryptic, inartistic, or poorly drawn a
communication may be, it is sufficient as a protest for purposes of
section 514 if it conveys enough information to apprise knowledgeable
officials of the importer's intent and the relief sought"). However, the
claim for the "rate amount plus interest and Harbor Fee" (which is
referred to in the Notice of Action as a "Customs Clearance Fee") is
nowhere justified or explained in any materials submitted by protestant
as required by the law and Regulations. When acting on a protest,
Customs cannot and will not assume facts that are not presented. (See,
e.g., *United States v. Lineiro*, 37 CCPA 5, 10, C.A.D. 410 (1949),
"\[d\]etermination of issues in customs litigation may not be based on
supposition.") Accordingly, that portion of the protest which addresses
the assessment of fees will be denied.

As stated above, we will review the question of the classification of
the granite paving stones. Merchandise is classifiable under the
Harmonized Tariff Schedule of the United States (HTSUS) in accordance
with the General Rules of Interpretation (GRIs). The systematic detail
of the HTSUS is such that virtually all goods are classified by
application of GRI 1, that is, according to the terms of the headings of
the tariff schedule and any relative Section or Chapter Notes. In the
event that the goods

cannot be classified solely on the basis of GRI 1, and if the headings
and legal notes do not otherwise require, the remaining GRIs may then be
applied in order.

The HTSUS headings under consideration are as follows:

**2516** Granite, porphyry, basalt, sandstone and other

monumental or building stone, whether or not

roughly trimmed or merely cut, by sawing or

otherwise, into blocks or slabs of a rectangular

(including square) shape:

Granite:

2516.11.0000 Crude or roughly trimmed

\* \* \* \* \*

**6801**.00.0000 Setts, curbstones and flagstones, of natural

stone (except slate)

Note 2(e), Chapter 25, HTSUS, provides that: "This Chapter does not
cover: \... (e) Setts, curbstones or flagstones (heading 68.01); \..."

In understanding the language of the HTSUS, the Harmonized Commodity
Description and Coding System Explanatory Notes may be utilized. The
Explanatory Notes (ENs), although not dispositive or 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]{.underline} T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23,
1989).

We first refer to the EN to heading 25.16 which reads as follows:

> "\... It should be noted that when broken up in the form of macadam
> these rocks are classified in heading 25.17, and that stones in shapes
> identifiable as road or paving setts, flagstones or curbstones are
> classified in **heading 68.01** even if merely shaped or processed as
> specified in the text of this heading." \[Emphasis in the original\]

A brochure provided by the importer pictured the articles being used as
paving stones.

The EN for heading 68.01 states:

> "This heading covers natural stone other than slate (e.g., sandstone,
> granite and porphyry) worked into the shapes commonly used for paving
> or bordering roads, pavements or the like; such stones remain in this
> heading even if they are also suitable for other uses. \... The
> heading includes stone in shapes identifiable as setts, curbstones or
> flagstones, even if obtained simply by splitting, sawing or roughly
> squaring; \...".

Taken together, Note 2(e), Chapter 25, HTSUS, and the language of the
ENs are clear that the articles which are to be used as paving stones
are properly classified in heading 6801, HTSUS.

**HOLDING**:

The articles described as granite paving stones are classified in
subheading 6801.00.0000, HTSUS, as setts, curbstones and flagstones, of
natural stone (except slate).

The 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, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division