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