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HQ 957283




November 7, 1995

CLA-2 R:C:M 957283 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7116.20.20

Port Director
U.S. Customs Service
1717 East Loop
Houston, TX 77029

RE: Protests 5301-94-100459,-100315, -100383, and -100393; Serpentine stone articles; Note 1(d) Chapter 68, Note 1(a) Chapter 71; Gen EN 3 to Section XIV, EN 71.16, EN Annex to Section XIV; HRLs 950057, 955355, 956092.

Dear Port Director:

The following is our decision regarding the request for further review of Protests 5301-94-100459, -100315, -100383, and -100393 concerning your action in classifying and assessing duty on various serpentine stone articles under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the articles was provided for examination. In preparing this ruling, consideration was given to arguments presented by counsel for the protestant at a meeting on April 26, 1995, as well as in supplemental submissions dated May 1 and June 6, 1995.

FACTS:

The protested entries are for importations of various ornamental articles made of serpentine, a type of stone. The articles vary in size and value. Their shapes include fruits (grapes, peaches), animals (lions, cows, elephants, horses), figurines (old men, Buddha, children) and incense burners.

Protest 5301-94-100459 was timely filed on August 4, 1994, for entries liquidated on May 6 and 27 and June 3 and 24, 1994. Protest 5301-94-100315 was timely filed on May 12, 1994, for entries liquidated on February 11, 1994. Protest 5301-94-100383 was timely filed on June 9, 1994, for entries liquidated on March 11, 1994. Protest 5301-94-100393 was timely filed on June 23, 1994, for entries liquidated on March 25, and April 1, 1994. The entries were liquidated under subheading 7116.20.20, HTSUS, as articles of semiprecious stones. Protestant contends that the stone articles should be classified as other stone under subheading 6802.99.00, HTSUS,

ISSUE:

Are serpentine stone figurines classifiable as articles of semiprecious stone?

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 the terms of the headings and any relative section or chapter notes...." Chapter 68, HTSUS, provides for articles of stone, plaster, cement, asbestos, mica or similar materials. Chapter 71, HTSUS, provides for natural or cultured pearls, precious or semiprecious stones, precious metals, metals clad with precious metal, and articles thereof; imitation jewelry; coin.

Both chapters provide for articles made from stone. However, the plain language of chapter 71 clearly indicates that stone identified as "precious/semiprecious" for tariff purposes, and articles made from it, are classified in chapter 71. Furthermore, Note 1(d), Chapter 68, states that "this chapter does not cover: articles of chapter 71." Moreover, Note 1(a), Chapter 71, HTSUS, states that:

Subject to note 1(a) to section VI and except as provided below, all articles consisting wholly or partly:

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

The HTSUS is quite clear that classification of an article under Chapter 71 takes precedence over classification of an article under Chapter 68. Therefore, we must first determine whether the subject articles are identifiable as semiprecious stone for tariff purposes.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be consulted. The 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 the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

General EN 3 to Section XIV (pg. 949), states, in pertinent part, that chapter 71, includes "in general, articles made wholly or partly of natural or cultured pearls, diamonds 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), includes "serpentine" in the list of precious or semi-precious stones.

The Annex is a list provided to the Explanatory Note authors by the trade. According to World Customs Organization Document 38.907 E, dated October 19, 1994, the Annex is based on the "Blue Book" of the International Confederation of Jewelry, Silverware, Diamonds, Pearls & Precious Stones (CIBJO). CIBJO is a professional international organization whose main purpose is to promote international cooperation in the jewelry industry and to solve problems which concern trade world wide. Membership is open to national federations that embrace the whole trade in each country and not individuals. The U.S. is a member.

Because the Annex identifies serpentine as a semiprecious stone Customs has concluded that, articles made of serpentine are classifiable under chapter 71. 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....

It thus includes:...

(B) Other articles consisting wholly or partly of precious or semi-precious stones...the heading covers crosses and rings (frequently in agate), bracelets (other than wrist-watch bracelets), goblets and cups (often in garnet); statuettes and ornamental articles (e.g., of jade); mortars and pestles (e.g., in agate); knife edges or bearings of agate or other precious or semi-precious stones for weighing apparatus; agate thread spinning guides; decorative corks with heads of agate, etc.; agate burnishing tools used for gilding, for polishing leather, paper, etc.; agate rings for fishing rods, paper-knives, ink-stands, paperweights, ashtrays (e.g., of agate or onyx).

Because the subject articles are made of an identified semiprecious stone they are classifiable in heading 7116.

Protestant argues that the the figurines are described under heading 6802. We disagree. EN 68.02, p. 897, provides, in pertinent part, 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... (emphasis added)

The heading therefore covers stone which has been further processed than mere shaping into blocks, sheets or slabs by splitting, roughly cutting or squaring, or squaring by sawing (square or rectangular faces).

The heading thus covers stone in the forms produced by the stone-mason, sculptor, etc., viz.: (A) Roughly sawn blanks; also non-rectangular sheets (one or more faces triangular, hexagonal, trapezoidal, circular, etc.).

(B) Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a "rock faced" finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc.

The heading therefore includes not only constructional stone (including facing slabs) worked as above, but also articles such as steps, cornices, pediments, balustrades, corbels and supports; door or window frames and lintels; thresholds; mantelpieces; window sills; doorsteps; tombstones; boundary stones and milestones, bollards; panoramic indicators (enamelled or not); guard posts and fenders; sinks, troughs, fountain basins; balls for crushing mills; flower pots; columns, bases and capitals for columns; statues, statuettes, pedestals; high or low reliefs; crosses; figures of animals; bowls, vases, cups; cachou boxes; writing-sets; ashtrays; paper weights; artificial fruit and foliage, etc. Ornamental goods of stone combined with other materials may be classified as jewellery or imitation jewellery, or as goldsmiths' or silversmiths' wares (see the Explanatory Note to Chapter 71); other ornamental goods essentially of stone are, in general, classified in this heading.

Heading 6802, specifically provides for all building stone in slab or tile form. Furthermore, it provides for building stone, which has not been identified as precious or semiprecious stone, in article form. Therefore, a figurine made of limestone, which is not identified in the Annex, would be classifiable under heading 6802. Serpentine figurines, made from stone identified in the Annex as precious or semiprecious stone, are classifiable in chapter 71.

Additionally, Protestant argues that the term "semi-precious" does not apply to all forms of the geological stone listed in the Annex. Instead, the term only applies to certain varieties of the stone. We disagree. Unlike the Explanatory Note Annex, the "blue book" provides not only for the mineral species and commercial names, but the varieties of named minerals CIBJO considers semi-precious. Had the authors intended variety to indicate a stone's "precious/semi-precious" nature the particular varieties of those stones from the Annex would have been included in the Explanatory Notes. Furthermore, the introduction of "variety" or "quality" as a factor to determine the "precious/semi-precious" nature of a particular stone would require an evaluation of subjective characteristics. These characteristics include:

1. durability- which includes the cleavage, fracture and hardness of a particular stone.

2. beauty- which includes brilliancy , dispersion, selective absorption, pleochroism, asterism, chatoyancy, play of color, and adularescence. 3. rarity
4. value

See, 7 McGraw-Hill Encyclopedia of Science & Technology, 612-620, 6th Edition, 1987. McGraw-Hill further states the following regarding the terms "precious/ semi-precious":

Gemstones are commonly designated as precious or semiprecious. This is a somewhat meaningless practice, however, and often misleading, since many of the so-called precious gem varieties are inexpensive and many of the more attractive varieties of the semiprecious stones are exceedingly expensive and valuable.

Heading 7116, HTSUS, covers all articles of precious or semiprecious stones. We note the 1995 HTSUS, specifically provides for figurines of semiprecious stone under subheading 7116.20.35.

The subject articles' stone, serpentine, is identified in the Annex as a semiprecious stone. Therefore, it is classifiable in subheading 7116.20.20, HTSUS. For similar rulings see, Headquarters Ruling Letter (HRL) 950057 dated October 31, 1991, HRL 955355 dated April 28, 1994, and HRL 956092 dated June 29, 1993, which classified a carved serpentine stone, a serpentine cheese board and a serpentine desk nameplate under subheading 7116.20.20, HTSUS. We conclude that the serpentine stone decorative articles are properly classified under subheading 7116.20.20, HTSUS, as other articles of semiprecious stone.

HOLDING:

The serpentine decorative articles are classified under subheading 7116.20.20, HTSUS, as other articles of semiprecious stone.

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, this decision should be mailed, with the Customs Form 19, 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 of 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
Tariff Classification Appeals Division

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