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HQ 957310




November 15, 1994

CLA-2 CO:R:C:M 957310 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.99.40

Daniel Fink, Purchasing Manager
Boyd Lighting
56 12th Street
San Francisco, CA 943103

RE: HRL 956915 revoked; alabaster lamp 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 Mr. Fink:

This is in reference to the notice issued to you on November 1, 1994, by the District Director, Great Falls, Montana, advising you that Protest 3307-94-100054 was denied based on Headquarters Ruling Letter (HRL) 956915 dated October 17, 1994, which classified certain alabaster articles under subheading 7116.20.20, Harmonized Tariff Schedule of the United States (HTSUS), as other articles of semi-precious stone. We have reviewed this ruling and determined that the classification of the alabaster articles indicated is incorrect.

HRL 956915 is a ruling on a specific protest. A protest is designed to handle importations which have entered the U.S. and been liquidated by Customs. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR Part 174), cannot be modified or revoked as it is applicable only to the entry protested. Furthermore, Customs lost jurisdiction over the protested entry in HRL 956915 when notice of denial of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985).

However, Customs can modify or revoke a ruling to change the legal principals set forth in the protest letter. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Moderation) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, Customs may, within 60 days from the date of issuance, modify or revoke a prior interpretive ruling or decision without publication in the Customs Bulletin. This revocation decision will not affect the entry which was the subject of Protest 3307-94-100054, but will be applicable to any unliquidated entries or future importations of similar merchandise.

FACTS:

In HRL 956915, we determined that the alabaster articles were classified under subheading 7116.20.20, HTSUS, as other articles of semi-precious stone. HRL 956915 described the alabaster articles as follows:

The articles under consideration are described by Customs personnel in Great Falls as "hollowed-out alabaster balls used in lighting fixtures." The invoice description is "ALABASTER USED FOR LIGHTING FIXTURES."

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 articles 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 articles 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 articles 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 articles are not more specifically classified elsewhere in the HTSUS. The alabaster articles are designed, marketed, and principally used as parts of lamps and lighting fixtures. Therefore, the alabaster articles 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 articles are not classifiable as semi-precious stone in Chapter 71, HTSUS, they are not excluded from classification within Chapter 94, HTSUS.

HOLDING:

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

HRL 956915 is revoked.

Sincerely,

John Durant, Director
Commercial Rulings Division

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