CLA-2 CO:R:C:M 956092 KCC
District Director
U.S. Customs Service
P.O. Box 37260
6269 Ace Industrial Drive, Cudahy WI
Milwaukee, Wisconsin 53237-0260
RE: Protest 3401-94-100004; desk nameplates; green marble;
serpentine; semi-precious; 6802.99.00; other stone; General
EN 3 to Section XIV; EN Annex to Section XIV; EN 71.16;
grade of stone; HRL 950057; HRL 955355; Legal Note 1(d),
Chapter 68
Dear District Director:
This is in response to Protest 3401-94-100004, which
pertains to the tariff classification of desk nameplates under
the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject desk nameplates are described by the protestant
as green marble desk nameplates which weigh 4 pounds each and
measure 12 inches by 2 inches by 2 inches. Each nameplate is
stated to cost approximately $6.25.
Upon importation, the entry of the desk nameplates was
liquidated on November 5, 1993, under subheading 7116.20.20,
HTSUS, as other articles of semi-precious stone. This
classification was based on Customs Laboratory Reports for
similarly described "green marble" from the same supplier, San Ya
Resources Development Co., Ltd., issued to the protestant. See,
Customs Laboratory Reports 3-91-31556-001 dated July 24, 1991
(nameplate), 3-93-30748-001 dated April 30, 1993 (tile), 3-90-31952-001 dated July 19, 1990 (tile), 3-90-30956-001 dated March
23, 1990 (tile), and 3-90-32517-001 dated September 21, 1990
(tile). The laboratory reports found that the "green marble" was
actually serpentine.
In a protest timely filed on January 6, 1994, the protestant
contends that the nameplates are properly classified under
subheading 6802.99.00, HTSUS, as other stone. The protestant
contends that its desk nameplates should be classified in the
same manner as its floor tile because both the desk nameplate and
floor tile are made from the exact same material and differed
only in shape and size. The protestant describes its floor tile
as weighing approximately 4 pounds, measuring 12 inches by 12
inches by 3/8 of an inch and costing approximately $4.20.
The competing subheadings are as follows:
6802.99.00 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...Other stone.
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).
ISSUE:
Are the desk nameplates classified as other stone under
subheading 6802.99.00, HTSUS, or as other articles of semi-precious stone under subheading 7116.20.20, 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...."
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 are to
be used to determine 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, 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 "serpentine" 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....
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).
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 stone not more specifically described
by other parts of the tariff. The serpentine desk nameplates are
the kind of articles contemplated in subheading 7116.20.20,
HTSUS, for they are ornamental articles made from semi-precious
stone. See, Headquarters Ruling Letter (HRL) 950057 dated
October 31, 1991, and HRL 955355 dated April 28, 1994, which
classified a carved serpentine stone and a serpentine cheeseboard
under subheading 7116.20.20, HTSUS. Therefore, we conclude that
the serpentine desk nameplate is properly classified under
subheading 7116.20.20, HTSUS, as other articles of semi-precious
stone.
Since the desk nameplates are composed of the same material
as its floor tiles differing only in shape and size, the
protestant contends that the desk nameplates should be classified
the same as its floor tiles under subheading 6802.99.00, HTSUS,
as other stone. The comparison of floor tiles and desk
nameplates is inappropriate. The shape and size are not the only
differences between the two article. Although both articles
weigh 4 pounds each, there is a price difference of approximately
32%, $4.20 for each floor tile and $6.25 for each desk nameplate.
The floor tiles and desk nameplates are two different articles
for tariff classification purposes.
Moreover, Legal Note 1(d), Chapter 68 states that "[t]his
chapter does not cover: [a]rticles of chapter 71." If an article
is classifiable as semi-precious stone, it is to be classified in
Chapter 71, HTSUS. The HTSUS is quite clear that classification
of an article under Chapter 71, HTSUS, takes precedence over
classification of an article under Chapter 68, HTSUS.
HOLDING:
The serpentine desk nameplates are classified under
subheading 7116.20.20, HTSUS, as other articles of semi-precious
stone.
The protest is 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, Lexis, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division