CLA-2 CO:R:C:M 955355 MMC
Ms. Allen Rosenberg
Mr. David Eisen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, New York 10036-8901
RE: NYRL 867839 affirmed; serpentine cheese boards, marble pastry
boards; HRL's 950057, 952679
Dear Ms. Rosenberg and Mr. Eisen:
This is in response to your letter dated November 8, 1993,
on behalf of R.H. Macy's Co., Inc., requesting reconsideration of
New York Ruling Letter (NYRL) 867839 issued on December 17, 1991,
by the Area Director, New York Seaport. In NYRL 867839, your
client was advised of the classification of a marble pastry board
and a serpentine cheese board under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
The articles in question are a cheese board and a pastry
board. The cheese board is circular and measures approximately
10 inches in diameter. The pastry board is rectangular and
measures approximately 12 inches by 8 inches. Both articles are
approximately 1/2 inch thick and have plastic feet glued to the
bottom.
Samples of both were tested by Customs Laboratory Services.
Lab Report Number 2-92-20217-001, dated November 29, 1991,
states that the cheese board is composed of serpentine, a
magnesium silicate stone. Lab Report Number 2-92-20218-001,
dated November 29, 1991, states that the pastry board is composed
of mineral calcuim carbonate that meets the geological definition
of marble.
NYRL 867839 held that the marble pastry board was
classifiable under subheading 6802.91.15, HTSUS, as a marble
article of worked monumental or building stone. The serpentine
cheese board was held to be classifiable under subheading
7116.20.20, HTSUS, as an article of semiprecious stone.
You claim that the serpentine cheese board is classifiable
under subheading 6802.99.00, HTSUS, as other worked monumental
or building stone. In the alternative, you suggest that both
boards are classifiable under subheading 6815.99.40, HTSUS, as
other articles of stone.
The subheadings under consideration are as follows:
7116.20.20 [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)
6802.91.15 [w]orked 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,
clippings and powder, of natural stone (including
slate): [o]ther: [o]ther: [m]arble, travertine and
alabaster: [o]ther
6802.99.00 [w]orked 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,
clippings and powder, of natural stone (including
slate): [o]ther: [o]ther stone
6815.99.40 [a]rticles of stone or of other mineral substances
(including articles of peat), not elsewhere
specified or included: [o]ther articles: [o]ther:
[o]ther
ISSUE:
Are the serpentine cheese boards classifiable as articles of
worked monumental or building stone or are both the pastry and
cheese boards classifiable as articles of stone not elsewhere
specified?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. 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, describes articles of stone. Chapter 71,
HTSUS, describes, in pertinent part, semiprecious stones.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23,
1989).
EN Gen. 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, diamonds or
other precious or semiprecious 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 "serpentine" as a precious or semiprecious stone. EN
71.16, pg 963, states, in pertinent part, that:
[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... [i]t thus
includes:...(B) [o]ther articles consisting wholly or partly
of precious or semi-precious stones; ...[s]ubject 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).
Heading 7116, HTSUS, covers all articles of precious or
semi-precious stones (emphasis added). 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. Furthermore, Note 1(d) to Chapter
68, HTSUS, states, in pertinent part, that: "[t]his chapter does
not cover: (d) [a]rticles of chapter 71." See Headquarter's
Ruling Letter (HRL) 950057 dated October 31, 1991, classifying
carved serpentine stone under subheading 7116.20.20, HTSUS.
You argue that HRL 952679, dated January 26, 1993, which
classified serpentine slabs under subheading 6802.99.00, HTSUS,
is applicable to the cheese board in question because both
articles are similar. We disagree. HRL 952679 classified
serpentine slabs, which are specifically named as articles of
Chapter 68, HTSUS; cheese boards are not named.
You argue that the cheese and pastry boards are classifiable
under subheading 6815.99.40, HTSUS. However, EN 68.15, pg. 909,
states, in pertinent part, that: "this heading covers articles of
stone or of other mineral substances not covered by the earlier
headings of this Chapter and not included elsewhere in the
Nomenclature..." The subject boards do not satisfy the terms of
this subheading as they are more specifically included under
subheading 7116.20.20, HTSUS.
HOLDING:
NYRL 667839 is affirmed. The cheese boards are classifiable
under subheading 7116.20.20, HTSUS, as articles of semi-precious
stone with a column one rate of duty of 21% ad valorem. The
pastry board is classifiable under subheading 6802.91.15, HTSUS.
Sincerely,
John Durant, Director