OT:RR:CTF:CPMMA H311301 AJK
TARIFF NO: 2520.10.00; 2530.90.80; 7103.10.20; 9602.00.50
Ms. Tara Tompkins
Eighteen Karat International Product Sourcing Inc.
5292 272nd Street
Langley, British Columbia
Canada V4W 1S3
RE: Revocation of NY F86134, NY N004112, NY N004200, and NY N015557; Classification of Certain Mineral Stones
Dear Ms. Tompkins:
This letter is in reference to your New York Ruling Letters (NY) N004112, dated December 28, 2006, NY N004200, dated December 28, 2006, and NY N015557, dated August 21, 2007, issued to you by U.S. Customs and Border Protection (CBP), concerning the tariff classification of certain mineral stones—specifically, concerning selenite, calcite and aragonite—under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed the aforementioned rulings and have determined that the classification of the merchandise was incorrect.
We have also reviewed NY F86134, dated April 18, 2000, concerning the tariff classification of amber, and have determined that the ruling was incorrect. For the reasons set forth below, we revoke the four ruling letters.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Volume 55, No. 15, on April 21, 2021. One comment was received in response to this notice.
FACTS:
The amber was described in NY F86134 as follows:
The merchandise to be imported consists of amber, in its natural state or sanded down and buffed. The amber will not be made into a finished article.
The selenite stones were described in NY N004112 as follows:
The Selenite Stones, white (46539, 46540 and 46541) and Selenite Stones, orange (46542 and 46543) are natural mineral stones mined in Morocco. They were formed 140 - 200 million years ago. Selenite is a hydrous calcium sulfate. It is a glassy, well-crystallized form of gypsum. They are naturally occurring stones, not cultured. Other than being cut to size there is no further processing done on the stones following the manual extraction of the rock form the earth. The stones are not polished; they are imported in their natural state. These mineral stones are marketed as decorations or collectibles for the home.
The selenite desert roses stones in NY N004200 are substantially similar to the product described in NY N004112.
The calcite geodes and aragonite specimens were described in NY N015557 as follows:
The Calcite Geodes (items 47548, 47549 and 47550) and Argonite specimens are natural mineral stones mined in Morocco. The Calcite Geodes are naturally occurring rock formations that appear in sedimentary or volcanic rock. The Argonite Stones are also naturally occurring formations that have not been cultured or altered.
ISSUE:
Whether certain mineral stones—specifically, amber, selenite, calcite, and aragonite—are classified in heading 2520, HTSUS, as gypsum, heading 2530, HTSUS, as mineral substances, heading 7103, HTSUS, as precious or semiprecious stones, heading 9602, HTSUS, as worked mineral carving material, or heading 9705, HTSUS, as collectors’ pieces of minerals.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
* * * * * *
The HTSUS provisions at issue are as follows:
2520: Gypsum; anhydrite; plasters (consisting of calcined gypsum or calcium sulfate)
whether or not colored, with or without small quantities of accelerators or retarders:
2520.10.00: Gypsum; anhydrite
2530: Mineral substances not elsewhere specified or included:
2530.90: Other:
2530.90.80: Other
7103: Precious stones (other than diamonds) and semiprecious stones, whether or not
worked or graded but not strung, mounted or set; ungraded precious stones (other than diamonds) and semiprecious stones, temporarily strung for convenience of transport:
7103.10: Unworked or simply sawn or roughly shaped:
7103.10.20: Unworked
9602.00: Worked vegetable or mineral carving material and articles of these
materials; molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included; worked, unhardened gelatin (except gelatin of heading 3503) and articles of unhardened gelatin:
9602.00.50: Other
9705.00.00: Collections and collectors' pieces of zoological, botanical, mineralogical,
anatomical, historical, archeological, paleon-tological, ethnographic or numismatic interest
The Legal Note to Chapter 25, HTSUS, provides, in pertinent part:
Except where their context or note 4 to this chapter otherwise requires, the
headings of this chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading.
…
4. Heading 2530 applies, inter alia, to: … amber ….
The Legal Note to Chapter 71, HTSUS, provides, in pertinent part:
This chapter does not cover:
…
(p) [C]ollectors' pieces (heading 9705) …, other than natural or cultured pearls or precious or semiprecious stones.
The Legal Note to Chapter 96, HTSUS, provides, as follows:
In heading 9602 the expression "vegetable or mineral carving material" means:
…
(b) Amber, meerschaum, agglomerated amber and agglomerated meerschaum, jet and mineral substitutes for jet.
The Legal Note to Chapter 97, HTSUS, provides, as follows:
This chapter does not cover:
…
(c) Pearls, natural or cultured, or precious or semiprecious stones (headings 7101 to 7103).
* * * * * *
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (ENs) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The General EN to Chapter 25, provides, in pertinent part:
As provided in Note 1, this Chapter covers, except where the context otherwise requires, mineral products only in the crude state or washed (including washing with chemical substances to eliminate impurities provided that the structure of the product itself is not changed), crushed, ground, powdered, levigated, sifted, screened or concentrated by flotation, magnetic separation or other mechanical or physical processes (not including crystallisation)….
The General EN to Chapter 71, provides, in pertinent part:
This Chapter includes:
In headings 71.01 to 71.04, natural or cultured pearls, diamonds, other precious or semi-precious stones (natural, synthetic or reconstructed), unworked or worked, but not mounted, set or strung; also, in heading 71.05, certain waste resulting from the working of these stones.
The General EN to Chapter 97, provides, in pertinent part:
This Chapter covers:
…
(C) Collections and collectors’ pieces of zoological, botanical, mineralogical,
anatomical, historical, archaeological, palaeontological, ethnographic or numismatic interest (heading 97.05)….
It should, however, be noted that such articles are classified in other Chapters of the Nomenclature if they do not comply with the conditions arising from the terms of the Notes or headings of this Chapter.
EN 25.20, provides, as follows:
Gypsum is a natural hydrated calcium sulphate generally white and friable.…
EN 25.30(B) provides, in pertinent part:
Amber is a fossilised resin (also known as “succinite” or “Karabé”). It generally ranges in colour from yellow to deep orange….
EN 71.03 provides, in pertinent part:
The heading includes the precious or semi-precious stones listed in the Annex to this Chapter, the name of the mineralogical species being given with the commercial names; the heading is, of course, restricted to those stones and varieties of a quality suitable for use in jewellery, etc.
EN 96.02(B), which provides for worked mineral carving materials, states as follows:
This group covers mineral carving materials of the kind mentioned in Note 2 (b) to this Chapter.
The heading does not cover the following products which fall in heading 25.30 :
(i) Rough blocks or lumps of meerschaum or amber; ….
EN 97.05 provides, in pertinent part, as follows:
These articles are very often of little intrinsic value but derive their interest from their rarity, their grouping or their presentation. The heading includes :
Collections and collectors’ pieces of zoological, botanical, mineralogical or anatomical interest, such as:
…
(4) Specimens of minerals (not being precious or semi precious stones falling in Chapter 71); ….
* * * * * *
Amber
Heading 9705, HTSUS, which provides for collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, palaeontological, ethnographic or numismatic interest, covers articles that “derive their interest from rarity, their grouping or their presentation.” EN 97.05. Amber, however, is generally common with the exception of very large pieces of amber or amber with rare insects. In regard to the instant amber stones, the description of the merchandise does not highlight their rarity or other unique characteristics that may qualify them as being rare. Thus, the instant amber stones are not classifiable in heading 9705, HTSUS, as collectors’ pieces, due to their lack of rarity or unique interest for collectors.
Heading 2530, HTSUS, is a provision for mineral substances, including amber. EN 25.30; see also Note 4 to Chapter 25. To classify amber stones in heading 2530, HTSUS, Note 1 to Chapter 25 provides that they must be in in crude state. Accordingly, the amber stones in natural state in NY F86134 are classified in heading 2530, HTSUS, as mineral substances. The sanded and buffed amber stones, however, are excluded from heading 2530, HTSUS, because they are no longer in crude state after undergoing the worked process of sanding down and buffing. The Legal Note 2(b) to Chapter 96, which encompasses minerals, provides that “vegetable or mineral carving material” in heading 9602, HTSUS, means “amber”. Moreover, EN 96.02(B) states that heading 9602, HTSUS, “does not cover … products which fall in heading 25.30 [including] (i) [r]ough blocks or lumps of … amber”. Accordingly, as the sanded and buffed amber stones are excluded from heading 2530, HTSUS, as mineral substance, heading 9602, HTSUS, is the only heading that wholly encompasses the instant amber stones that are further worked and are not in their crude state. Therefore, the sanded and buffed amber stones are classified in heading 9602, HTSUS, as worked mineral carving material.
Selenite Stones
Heading 2520, HTSUS, is an eo nomine provision that provides for gypsums, which are natural hydrated calcium sulphates, such as the instant selenite stones in NY N004112 and NY N004200. See EN 25.20. Gypsums—of which selenite is a variety—are one of the most abundant minerals and are not considered rare unless they are in the form of gem-quality crystals with transparency. The instant selenite stones, however, are not colorless or transparent and thus, they lack unique interests for collectors due to their abundancy. Accordingly, they are not considered rare within the context of heading 9705, HTSUS, which provides for collectors’ pieces. By application of GRI 1, therefore, the selenite stones are excluded from heading 9705, HTSUS, which provides for collectors’ pieces, and instead classified in heading 2520, HTSUS, as gypsums.
Aragonite and Calcite
The EN’s Annex to Chapter 71, HTSUS, lists various minerals that constitute precious or semiprecious stones under HTSUS. The Annex does not include organic materials, such as amber; however, the Annex specifically identifies aragonite and calcite. Under HTSUS, therefore, aragonites and calcites are classified as precious or semiprecious stones in heading 7103, HTSUS. Accordingly, heading 7103, HTSUS, is the only heading that wholly characterizes the instant aragonites and calcites, and is not classifiable in heading 9705, HTSUS. Although EN 97.05 provides that the heading includes “specimens of minerals”, Note 1 to Chapter 97 states that Chapter 97 does not cover precious or semiprecious stones in heading 7103, HTSUS. Accordingly, even if the instant aragonite and calcite are rare, they are excluded from heading 9705, HTSUS, because they are wholly classified in heading 7103, HTSUS. Under GRI 1, therefore, aragonite and calcite are, prima facie, classified in heading 7103, HTSUS, which provides for precious or semiprecious stones.
As noted above, we received one comment in response to the notice of the proposed revocation. With regard to amber and selenite stones, the commenter contends that the proposed revocation incorrectly considered the stones’ mineral composition only and that the sale of mineral stones as collectibles are attributed to the rarity of mineral and/or aesthetic beauty. To support its claim for the consideration of rare beauty, the commenter provides examples of reported sales or auctions of similar specimens or collections. Indeed, EN 97.05 provides that the articles of heading 9705, HTSUS, “derive their interest from their rarity, their grouping or their presentation” and we accordingly recognize that such presentation may encompass the stone’s rare beauty. In the present case, however, our research indicates that the subject selenite stones in NY N004112 and N004200 do not possess rare presentation or beauty, in addition to lacking rarity of minerals, to warrant them as collector’s items. Whereas collector’s items are generally priced at a high value, the subject selenite stones and similar specimens are generally marked and sold at low prices (less than one hundred dollars). Although we did not find additional information concerning the amber stone in NY F86134, the description of the merchandise does not indicate or suggest its rarity of mineral or beauty. As stated above, therefore, the amber and selenite stones do not constitute collector’s pieces of heading 9705, HTSUS.
In addition, the commenter argues that the aragonite and calcite stones in NY N01557 are precluded from heading 7103, HTSUS, because EN 71.03 provides that “[t]he stones of this heading are therefore mainly stones intended for mounting or setting in jewellery or goldsmiths’ or silversmiths’ wares” while the subject stones are for open display on shelves. Although it is true that EN 71.03 states that this heading “mainly” covers stones for jewelry, this fact does not preclude other precious or semiprecious stones from heading 7103, HTSUS. Moreover, EN 71.03 restricts the heading “to those stones and varieties of a quality suitable for use in jewellery, etc.” only. Accordingly, the subject aragonite and calcite stones are not excluded from heading 7103, HTSUS, because they are stones that are identified as precious or semiprecious stones in the EN’s Annex to Chapter 71 and they are of quality suitable for use in jewelry. Even if the subject stones constitute collectibles, they are not excluded from Chapter 71, because Note 3 to Chapter 71 provides that the chapter excludes collectors’ pieces of heading 9705, HTSUS, other than those of precious and semiprecious stones. Thus, the mineral stones herein are excluded from heading 9705, HTSUS.
HOLDING:
By application of GRI 1, the amber stones in natural status are classified in heading 2530, HTSUS, specifically subheading 2530.90.80, HTSUS, which provides for “[m]ineral substances not elsewhere specified or included: [o]ther: [o]ther”. The 2021 column one, general rate of duty is free. However, the sanded down and buffed amber stones are classified in heading 9602, HTSUS, specifically subheading 9602.00.50, HTSUS, which provides for “[w]orked vegetable or mineral carving material and articles of these materials; molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included; worked, unhardened gelatin (except gelatin of heading 3503) and articles of unhardened gelatin: [o]ther”. The 2021 column one, general rate of duty is 2.7 percent ad valorem.
In addition, the selenite stones are classified in heading 2520, HTSUS, specifically subheading 2520.10.00, HTSUS, which provides for “[g]ypsum; anhydrite; plasters (consisting of calcined gypsum or calcium sulfate) whether or not colored, with or without small quantities of accelerators or retarders: [g]ypsum; anhydrite”. The 2021 column one, general rate of duty is free.
Lastly, the calcite and aragonite are classified in heading 7103, HTSUS, specifically subheading 7103.10.20, HTSUS, which provides for “[p]recious stones (other than diamonds) and semiprecious stones, whether or not worked or graded but not strung, mounted or set; ungraded precious stones (other than diamonds) and semiprecious stones, temporarily strung for convenience of transport: [u]nworked or simply sawn or roughly shaped: [u]nworked”. The 2021 column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY F86134, dated April 18, 2000, NY N004112, dated December 28, 2006, NY N004200, dated December 28, 2006, and NY N015557, dated August 21, 2007, are hereby revoked.
This ruling will become effective 60 days from the date of publication in the Customs Bulletin.
Sincerely,
Allyson Mattanah for
Craig T. Clark, Director Commercial and Trade Facilitation Division
CC: Mr. Zane L. Goehman
6321 Winona Ave.
St. Louis, MO 63109