CLA-2 CO:R:C:M 956489 KCC

District Director
U.S. Customs Service
2nd and Chestnut Streets
Room 102
Philadelphia, PA 19106-2999

RE: Protest 1101-94-100282; stone articles; green and black marble; serpentine; semi-precious; 6802.99.00; other stone; Note 1(d), Chapter 68; Note 1(a), Chapter 71; General EN 3 to Section XIV; EN Annex to Section XIV; EN 71.16; grade of stone; HRL 950057; HRL 955355; HRL 956092

Dear District Director:

This is in response to Protest 1101-94-100282, which pertains to the tariff classification of stone articles under the Harmonized Tariff Schedule of the United States (HTSUS). Information presented by the protestant at a meeting in our office on September 16, 1994, was taken under consideration in rendering this decision.

FACTS:

The stone articles are described on the invoice as "MARBLE WARE", "ITEM #M/092G, PLAIN - GREEN MARBLE WITH A HOLE FOR CLOCK (ITEM #MRB-MAC1-GRN)" valued at $2.15 per unit and "ITEM #M2717GB, GREEN AND BLACK MARBLE BASE W/O ASSEMBLING (ITEM #MRB-MAC/MAP-BS)" valued at $4.80 per unit. Although the subject articles are described as green and black marble, it has been determined that they are composed of serpentine. Therefore, the entry of the stone articles was liquidated on March 18, 1994, under subheading 7116.20.20, HTSUS, as other articles of semi-precious stone.

In a protest timely filed on May 12, 1994, the protestant contends that the stone articles are properly classified under subheading 6802.99.00, HTSUS, as other stone.

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 serpentine stone articles 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...."

The protestant contends that the stone articles are classified as other stone under subheading 6802.99.00, HTSUS, making the Chapter 68, HTSUS, notes applicable. Note 1(d), Chapter 68 states that "[t]his chapter does not cover: [a]rticles of chapter 71." Moreover, Note 1(a), Chapter 71, HTSUS, states that:

Subject to note 1(a) to section VI and except as provided below, all articles consisting wholly or partly:

(a) Of natural or cultured pearls or of precious or semiprecious stones (natural, synthetic or reconstructed)...

are to be classified in this chapter.

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. Therefore, if an article is classifiable as semi-precious stone, it is to be classified in Chapter 71, HTSUS.

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, 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. 89-90, 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.

At the time of entry, Customs officers at the port believed that the stone articles had been processed beyond the point of being a simple slab or tile of serpentine. Furthermore, in the meeting at Customs Headquarters the protestant advised us that the subject "green marble" was highly polished, had been edged treated and had a whole cut-out for the insertion of a clock. Likewise the subject "green and black marble base" was highly polished and had been edge treated. The subject articles 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, HRL 955355 dated April 28, 1994, and HRL 956092 dated June 29, 1993, which classified a carved serpentine stone, a serpentine cheeseboard and a serpentine desk nameplate under subheading 7116.20.20, HTSUS. Therefore, we conclude that the serpentine stone with a hole cut-out for the insertion of a clock and the serpentine stone base are properly classified under subheading 7116.20.20, HTSUS, as other articles of semi-precious stone.

HOLDING:

The serpentine stone with a hole cut-out for the insertion of a clock and the serpentine stone base 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, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division