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HQ 957204





November 15, 1994

CLA-2 CO:R:C:M 957204 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.99.40

District Director
U.S. Customs Service
555 Battery Street
San Francisco, California 94111

RE: Protest 2809-94-101196; alabaster wall sconces and lighting pendants; parts; 7116.20.20; semi-precious; Note 1(a), Chapter 71; General EN 3 to Section XIV; EN Annex to Section XIV; EN 71.16; 6802.91.30; alabaster worked monumental or building stone and articles thereof; EN 68.02; Note 1(k), Chapter 68; other parts of lamps and lighting fittings, not elsewhere specified or included; EN 94.05; Note 1(c), Chapter 94

Dear District Director:

This pertains to Protest 2809-94-101196, concerning the tariff classification of alabaster wall sconces and lighting pendants under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles under consideration are alabaster diffusers for wall sconces and lighting pendants. The wall sconces at issue are item numbers 51-314, 51-531, 51-514, 51-509 and 51-316, and the lighting pendants are item numbers 22-323, 21-940, 21-912, 22-312, 23-026, 21-712 and 21-914. The wall sconces are in the shape of a half bowl and include a metal backplate which is used for installation. The lighting pendant is in the shape of a bowl and is imported without any metal hardware. Neither the wall sconces or lighting pendants contain any electrical fittings.

The entries of the wall sconces and lighting pendants were liquidated on May 27, 1994, under subheading 7116.20.20, HTSUS, as other articles of semi-precious stones. In a protest timely filed on August 24, 1994, the protestant contends that the wall sconces and lighting pendants are classified under subheading 6802.91.30, HTSUS, as alabaster worked monumental or building stone and articles thereof, or under subheading 9405.99.40, HTSUS, as other parts of lamps and lighting fittings.

The competing subheadings are as follows:

6802.91.30 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, travertine and alabaster...Alabaster.

7116.20.20 Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed)...Of precious or semiprecious stones...Other...Of semiprecious stone (except rock crystal).

9405.99.40 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included...Parts... Other...Other.

ISSUE:

Are the alabaster wall sconces and lighting pendants classified as alabaster worked monumental or building stone and articles thereof under subheading 6802.91.30, HTSUS, or as other articles of semi-precious stone under subheading 7116.20.20, HTSUS, or as other parts of lamps and lighting fittings, not elsewhere specified or included under subheading 9405.99.40, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

Note 1(a), Chapter 71, HTSUS, states that "[s]ubject to Note 1(a) to Section VI and except as provided below, all articles consisting wholly or partly:

Of natural or cultured pearls or of precious or semi-precious stones (natural, synthetic or reconstructed)...are to be classified in this chapter."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System ENs may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

General EN 3 to Section XIV (pg. 949), states, in pertinent part, that Chapter 71, HTSUS, includes "[i]n general, articles made wholly or partly of natural or cultured pearls, diamond or other precious or semi-precious stones (natural, synthetic or reconstructed), precious metals or metal clad with precious metal (headings 71.13 to 71.16)." EN Annex to Section XIV (pg. 968), lists "alabaster" as a precious or semi-precious stone. EN 71.16 (pg. 963), states, in pertinent part, that:

This heading covers all articles (other than those excluded by Notes 2(b) and 3 to this Chapter), wholly of natural or cultured pearls, precious or semi-precious stones, or consisting partly of natural or cultured pearls or precious or semi-precious stones...(emphasis in original).

We are of the opinion that heading 7116, HTSUS, covers all articles of precious or semi-precious stones. This heading does not distinguish between the grade or value of stone but includes all types of precious or semi-precious stone not more specifically described by other parts of the tariff.

However, after reviewing additional information, we are of the opinion that alabaster is rarely, if ever, used as a precious or semi-precious stone. Therefore, in cases of alabaster, reliance on EN Annex to Section XIV to provide guidance as to the scope of heading 7116, HTSUS, is incorrect.

"Alabaster is a fine grained variety of the mineral gypsum, formerly much used for vases and statuary. It is usually white in color or may be of other light, pleasing tints." McGraw Hill's Dictionary of Scientific and Technical Terms, pg. 28. Our information indicates that alabaster is not rare, is relatively soft and workable for carving. Alabaster's hardness on the Moh's scale is 2; one can scratch it with a fingernail. Additionally, our information indicates that alabaster is used for ornamental vessels, figures and statuary. We have not found any information which reveals that alabaster is currently used in jewelry.

Furthermore, the Executive Director for the American Gem Trade Association, Inc. (AGTA) opines that:

Alabaster is not durable enough to be a gemstone. Its hardness of 2 on the Mohs scale is so low that it is entirely unsuitable for use in jewelry. Having worked in the jewelry and gemstone industry for more than a decade, I have never seen alabaster used as a gem material or even as a decorative component in fine or fashion jewelry.

Alabaster is not considered by the gem industry in the category traditionally known as "semi-precious" gem material. It quite common and therefore not rare enough to earn the designation of a gemstone.

In summary, though alabaster is a natural mineral, it is not a gemstone or gem material.

Additionally, the European Gemological Laboratory has opined that:

Alabaster is an ornamental natural material, a massive rock-like aggregate with a hardness of approximately 3 on the Mohs scale (very soft, easily carved). It is an item that is commonly used not only for bowls for indirect lighting (sconce), but for small items such as powder boxes, ash trays, clock cases, paper weights and other ornamental objects.

Based on this information, we are of the opinion that alabaster is not a precious or semi-precious stone classifiable under subheading 7116.20.20, HTSUS. However, alabaster is a stone and stone articles are provided for in Chapter 68, HTSUS. Specifically, the alabaster wall sconces and lighting pendants are classifiable under subheading 6802.91.30, HTSUS, as alabaster worked monumental or building stone and articles thereof. EN 68.02 (pgs. 897-898) states that:

This heading covers natural monumental or building stone (except slate) which has been worked beyond the stage of the normal quarry products of Chapter 25. There are, however, certain exceptions where goods are covered more specifically by other headings of the Nomenclature and examples of these are given at the end of the Explanatory Note and in the General Note to the Chapter (emphasis in original).

Note 1(k), Chapter 68, HTSUS, states this chapter does not cover:

Articles of chapter 94 (for example, furniture, lamps and lighting fittings, prefabricated buildings).

Therefore, if the alabaster wall sconces and lighting pendants are classified in Chapter 94, HTSUS, they are excluded from classification under subheading 6802.91.30, HTSUS.

EN 94.05 (pgs. 1580-1582), states that:

The heading also covers identifiable parts of lamps and lighting fittings, illuminated signs, illuminate name-plates and the like, not more specifically covered elsewhere....

As stated previously, we believe that the alabaster wall sconces and lighting pendants are not more specifically classified elsewhere in the HTSUS. The alabaster wall sconces and lighting pendants are designed, marketed, and principally used as parts of lamps and lighting fixtures. Therefore, the alabaster wall sconces and lighting pendants at issue are classified under subheading 9405.99.40, HTSUS, as other parts of lamps and lighting fittings, not elsewhere specified or included.

We note that Note 1(c), Chapter 94, HTSUS, states that "[t]his chapter does not cover: [a]rticles of chapter 71." Since the alabaster wall sconces and lighting pendants are not classifiable as semi-precious stone in Chapter 71, HTSUS, they are not excluded from classification within Chapter 94, HTSUS.

HOLDING:

The alabaster wall sconces and lighting pendants are classified under subheading 9405.99.40, HTSUS, as other parts of lamps and lighting fittings, not elsewhere specified or included.

The protest should be GRANTED. 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 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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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