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HQ 958353




November 2, 1995

CLA-2 R:C:M 958353 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 7116.20.40

Mr. Rolf Fredner
Rolf Fredner, Inc.
63 Melrose Drive
New Rochelle, NY 10804-4609

RE: soapstone wood-burning stove; articles of stone; precious or semiprecious stones; stoves; furniture; chapters 68, 71, 84, and 94; Legal Note 1(d) to Chapter 68; Legal Note 1(a) to Chapter 71; EN 71.16; HQ 955999; NY 811779, affirmed

Dear Mr. Fredner:

In a letter dated July 27, 1995, to the Area Director of Customs, New York Seaport, you requested reconsideration of NY 811779, dated July 5, 1995, in which a soapstone wood-burning stove was classified as an article of semiprecious stone under subheading 7116.20.4000 of the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response. In preparing this ruling we have also examined the pamphlet submitted with your letter of September 18, 1995.

FACTS:

The pamphlet submitted describes the merchandise as the OCTO model wood-burning stove which is constructed on its exterior and interior of soapstone (steatite). The octagonal-shaped stove is manufactured in a pre-fabricated kit form for assembly at the site of installation (primarily in private residences). The door on the front of the stove is made of either brass, steel or a combination of brass and glass. A stove extraction pipe made of steel is included with the kit for connection to a chimney.

According to the pamphlet, the soapstone wood-burning stove is designed to utilize a powerful draft to create a hearty blaze capable of generating very high temperatures. A good air supply improves the combustion of the harmful gases and this enables the soapstone stove to use 70-80% of the latent heat energy in wood. The steatite in the stove retains heat and continues to radiate warmth 8 to 10 hours after the final stoking. This is possible because steatite has 3 times as much heat-retaining capability as materials used in traditional solid fuel fires.

ISSUE:

Is the soapstone wood-burning stove classifiable as articles of precious or semiprecious stones or as articles of stone, not elsewhere specified, under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

In NY 811779, dated July 5, 1995, the Area Director of Customs, New York Seaport, held that the soapstone wood-burning stove was classifiable under subheading 7116.20.40, HTSUS, which provides for: "[a]rticles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): [o]f precious or semiprecious stones (natural, synthetic or reconstructed): [o]ther: [o]f semiprecious stones (except rock crystal): [o]ther. . . . "

You contend that the soapstone wood-burning stove should be classified under subheading 6815.99.00, HTSUS, which provides for: "[a]rticles of stone . . ., not elsewhere specified or included: [o]ther articles: [o]ther: [t]alc, steatite and soapstone, cut or sawed, or in blanks, crayons, cubes, disks or other forms. . . ." You believe that this subheading is a more appropriate provision because soapstone has no relevance to semiprecious stone.

Both chapters 68 and 71, HTSUS, provide for articles made of stone. However, the plain language of chapter 71, HTSUS, clearly indicates that stone identified as "precious/semiprecious" for tariff purposes, and articles made from it are classified in chapter 71. Furthermore, Legal Note 1(d) to chapter 68, states that "[t]his chapter does not cover: [a]rticles of chapter 71." Therefore, if an article is made of semiprecious stone, it is to be classified in chapter 71. See Legal Note 1(a) to chapter 71. The tariff schedule is quite clear that classification of an article in chapter 71, takes precedence over classification of an article under chapter 68.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). The Annex to the ENs for chapter 71, pages 966-969, lists soapstone (or steatite) as a precious or semiprecious stone. EN 71.16, pp. 963-964, states in pertinent part:

[t]his 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, but not containing precious metals or metals clad with precious metal . . . [i]t thus includes: . . . (B) [o]ther articles consisting wholly or partly of precious or semi-precious stones; . . . Subject to these conditions, the heading therefore covers. . . 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 rings for fishing rods, paper-knives, ink-stands, paperweights, ashtrays (e.g., of agate or onyx).

In HQ 955999, dated June 2, 1994, Customs stated that "[h]eading 7116, HTSUS, covers all articles of precious or semiprecious stone. This heading does not distinguish between the grade of stone but includes all types of precious or semi-precious stones not more specifically described by other parts of the tariff." The subject wood-burning stove is made of steatite which is included in the list of precious or semiprecious stones. Because steatite is specifically mentioned, articles made of steatite cannot be classified under chapter 68, HTSUS. Therefore, we conclude that the soapstone wood-burning stove is provided for in subheading 7116.20.40, HTSUS.

Classification of the merchandise under chapter 84 or 94, HTSUS, as stoves or furniture, respectively, was considered. However, section XVI, HTSUS, which covers chapter 84, states that: "[t]his section does not cover: precious or semiprecious stones (natural, synthetic or reconstructed) of headings 7102 to 7104, or articles wholly of such stones of heading 7116, except unmounted worked sapphires and diamonds for styli . . . (emphasis added)" See Legal Note 1(f) to section XVI. Chapter 94, which provides for furniture, excludes all furniture made from articles of chapter 71. See Legal Note 1(c) to chapter 94. Examination of the entire structure of the HTSUS indicates a clear preference that articles wholly or principally made of precious or semiprecious stones, regardless of its function, are to be classified in chapter 71, HTSUS.

HOLDING:

The soapstone wood-burning stove is classifiable under subheading 7116.20.40, HTSUS, which provides for other articles of semiprecious stones. The general, column one rate of duty is 18.9 percent ad valorem.

NY 811779, dated July 5, 1995, is affirmed.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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