CLA-2 CO:R:C:M 957310 KCC
Daniel Fink, Purchasing Manager
Boyd Lighting
56 12th Street
San Francisco, CA 943103
RE: HRL 956915 revoked; alabaster lamp 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 Mr. Fink:
This is in reference to the notice issued to you on November 1, 1994, by the District
Director, Great Falls, Montana, advising you that Protest 3307-94-100054 was denied based
on Headquarters Ruling Letter (HRL) 956915 dated October 17, 1994, which classified certain
alabaster articles under subheading 7116.20.20, Harmonized Tariff Schedule of the United
States (HTSUS), as other articles of semi-precious stone. We have reviewed this ruling and
determined that the classification of the alabaster articles indicated is incorrect.
HRL 956915 is a ruling on a specific protest. A protest is designed to handle
importations which have entered the U.S. and been liquidated by Customs. A final
determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR Part 174),
cannot be modified or revoked as it is applicable only to the entry protested. Furthermore,
Customs lost jurisdiction over the protested entry in HRL 956915 when notice of denial of the
protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. United
States, 9 CIT 517, 620 F. Supp. 738 (1985).
However, Customs can modify or revoke a ruling to change the legal principals set
forth in the protest letter. Pursuant to
section 625(c), Tariff Act of 1930 (19 U.S.C. 1625), as amended
by section 623 of Title VI (Customs Moderation) of the North
American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, Customs may, within 60 days from the date of
issuance, modify or revoke a prior interpretive ruling or
decision without publication in the Customs Bulletin. This
revocation decision will not affect the entry which was the
subject of Protest 3307-94-100054, but will be applicable to any
unliquidated entries or future importations of similar
merchandise.
FACTS:
In HRL 956915, we determined that the alabaster articles
were classified under subheading 7116.20.20, HTSUS, as other
articles of semi-precious stone. HRL 956915 described the
alabaster articles as follows:
The articles under consideration are described by Customs
personnel in Great Falls as "hollowed-out alabaster balls
used in lighting fixtures." The invoice description is
"ALABASTER USED FOR LIGHTING FIXTURES."
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 articles 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 articles 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 articles 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 articles are
not more specifically classified elsewhere in the HTSUS. The
alabaster articles are designed, marketed, and principally used
as parts of lamps and lighting fixtures. Therefore, the
alabaster articles 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 articles are not classifiable as semi-precious stone in Chapter 71, HTSUS, they are not excluded from
classification within Chapter 94, HTSUS.
HOLDING:
The alabaster articles are classified under subheading
9405.99.40, HTSUS, as other parts of lamps and lighting fittings,
not elsewhere specified or included.
HRL 956915 is revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division