CLA-2 CO:R:C:M 957204 KCC
District Director
U.S. Customs Service
555 Battery Street
San Francisco, California 94111
RE: Protest 2809-94-101196; alabaster wall sconces and lighting
pendants; parts; 7116.20.20; semi-precious; Note 1(a),
Chapter 71; General EN 3 to Section XIV; EN Annex to Section
XIV; EN 71.16; 6802.91.30; alabaster worked monumental or
building stone and articles thereof; EN 68.02; Note 1(k),
Chapter 68; other parts of lamps and lighting fittings, not
elsewhere specified or included; EN 94.05; Note 1(c),
Chapter 94
Dear District Director:
This pertains to Protest 2809-94-101196, concerning the
tariff classification of alabaster wall sconces and lighting
pendants under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The articles under consideration are alabaster diffusers for
wall sconces and lighting pendants. The wall sconces at issue
are item numbers 51-314, 51-531, 51-514, 51-509 and 51-316, and
the lighting pendants are item numbers 22-323, 21-940, 21-912,
22-312, 23-026, 21-712 and 21-914. The wall sconces are in the
shape of a half bowl and include a metal backplate which is used
for installation. The lighting pendant is in the shape of a bowl
and is imported without any metal hardware. Neither the wall
sconces or lighting pendants contain any electrical fittings.
The entries of the wall sconces and lighting pendants were
liquidated on May 27, 1994, under subheading 7116.20.20, HTSUS,
as other articles of semi-precious stones. In a protest timely
filed on August 24, 1994, the protestant contends that the wall
sconces and lighting pendants are classified under subheading
6802.91.30, HTSUS, as alabaster worked monumental or building
stone and articles thereof, or under subheading 9405.99.40,
HTSUS, as other parts of lamps and lighting fittings.
The competing subheadings are as follows:
6802.91.30 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...Marble, travertine and
alabaster...Alabaster.
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).
9405.99.40 Lamps and lighting fittings including searchlights
and spotlights and parts thereof, not elsewhere
specified or included; illuminated signs,
illuminated nameplates and the like, having a
permanently fixed light source, and parts thereof
not elsewhere specified or included...Parts...
Other...Other.
ISSUE:
Are the alabaster wall sconces and lighting pendants
classified as alabaster worked monumental or building stone and
articles thereof under subheading 6802.91.30, HTSUS, or as other
articles of semi-precious stone under subheading 7116.20.20,
HTSUS, or as other parts of lamps and lighting fittings, not
elsewhere specified or included under subheading 9405.99.40,
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...."
Note 1(a), Chapter 71, HTSUS, states that "[s]ubject to
Note 1(a) to Section VI and except as provided below, all
articles consisting wholly or partly:
Of natural or cultured pearls or of precious or semi-precious stones (natural, synthetic or reconstructed)...are
to be classified in this chapter."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System ENs may be utilized.
The ENs, although not dispositive, 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. 89-80, 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 "alabaster" 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...(emphasis in
original).
We are of the opinion that heading 7116, HTSUS, covers all
articles of precious or semi-precious stones. This heading does
not distinguish between the grade or value of stone but includes
all types of precious or semi-precious stone not more
specifically described by other parts of the tariff.
However, after reviewing additional information, we are of
the opinion that alabaster is rarely, if ever, used as a precious
or semi-precious stone. Therefore, in cases of alabaster,
reliance on EN Annex to Section XIV to provide guidance as to the
scope of heading 7116, HTSUS, is incorrect.
"Alabaster is a fine grained variety of the mineral gypsum,
formerly much used for vases and statuary. It is usually white
in color or may be of other light, pleasing tints." McGraw
Hill's Dictionary of Scientific and Technical Terms, pg. 28. Our
information indicates that alabaster is not rare, is relatively
soft and workable for carving. Alabaster's hardness on the Moh's
scale is 2; one can scratch it with a fingernail. Additionally,
our information indicates that alabaster is used for ornamental
vessels, figures and statuary. We have not found any information
which reveals that alabaster is currently used in jewelry.
Furthermore, the Executive Director for the American Gem
Trade Association, Inc. (AGTA) opines that:
Alabaster is not durable enough to be a gemstone. Its
hardness of 2 on the Mohs scale is so low that it is
entirely unsuitable for use in jewelry. Having worked in
the jewelry and gemstone industry for more than a decade, I
have never seen alabaster used as a gem material or even as
a decorative component in fine or fashion jewelry.
Alabaster is not considered by the gem industry in the
category traditionally known as "semi-precious" gem
material. It quite common and therefore not rare enough to
earn the designation of a gemstone.
In summary, though alabaster is a natural mineral, it is not
a gemstone or gem material.
Additionally, the European Gemological Laboratory has opined
that:
Alabaster is an ornamental natural material, a massive rock-like aggregate with a hardness of approximately 3 on the
Mohs scale (very soft, easily carved). It is an item that
is commonly used not only for bowls for indirect lighting
(sconce), but for small items such as powder boxes, ash
trays, clock cases, paper weights and other ornamental
objects.
Based on this information, we are of the opinion that
alabaster is not a precious or semi-precious stone classifiable
under subheading 7116.20.20, HTSUS. However, alabaster is a
stone and stone articles are provided for in Chapter 68, HTSUS.
Specifically, the alabaster wall sconces and lighting pendants
are classifiable under subheading 6802.91.30, HTSUS, as alabaster
worked monumental or building stone and articles thereof. EN
68.02 (pgs. 897-898) states 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 and examples of these
are given at the end of the Explanatory Note and in the
General Note to the Chapter (emphasis in original).
Note 1(k), Chapter 68, HTSUS, states this chapter does not cover:
Articles of chapter 94 (for example, furniture, lamps and
lighting fittings, prefabricated buildings).
Therefore, if the alabaster wall sconces and lighting pendants
are classified in Chapter 94, HTSUS, they are excluded from
classification under subheading 6802.91.30, HTSUS.
EN 94.05 (pgs. 1580-1582), states that:
The heading also covers identifiable parts of lamps and
lighting fittings, illuminated signs, illuminate name-plates
and the like, not more specifically covered elsewhere....
As stated previously, we believe that the alabaster wall sconces
and lighting pendants are not more specifically classified
elsewhere in the HTSUS. The alabaster wall sconces and lighting
pendants are designed, marketed, and principally used as parts of
lamps and lighting fixtures. Therefore, the alabaster wall
sconces and lighting pendants at issue are classified under
subheading 9405.99.40, HTSUS, as other parts of lamps and
lighting fittings, not elsewhere specified or included.
We note that Note 1(c), Chapter 94, HTSUS, states that
"[t]his chapter does not cover: [a]rticles of chapter 71."
Since the alabaster wall sconces and lighting pendants are not
classifiable as semi-precious stone in Chapter 71, HTSUS, they
are not excluded from classification within Chapter 94, HTSUS.
HOLDING:
The alabaster wall sconces and lighting pendants are
classified under subheading 9405.99.40, HTSUS, as other parts of
lamps and lighting fittings, not elsewhere specified or included.
The protest should be GRANTED. 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 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 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
Commercial Rulings Division