CLA-2 CO:R:C:M 953202 MMC

TARIFF NUMBER: 7104.20.00; 7104.90.50

Mr. John A. Slagle, Director
Customs Laws and Regulations
Wolf D. Barth Co. Inc.
7575 Holstein Avenue
Philadelphia, PA 19153

RE: Optical grade quartz; Chapter Note 71 1(a), Annex to Chapter 71; Note 2(b) to Chapter 96; EN 71.04, 71.02, 7103.10

Dear Mr. Slagle:

This is in response to your letter of 12/30/92, requesting tariff classification of cultured optical grade quartz under the Harmonized Tariff Schedule of the United States (HTSUS). Two samples were submitted for examination.

FACTS:

Both samples are colorless cultured quartz crystal used as raw material in optical manufacturing. Cultured quartz is "grown" at an elevated temperature in pressurized vessels from a seed using a liquid medium and has the identical properties of natural quartz.

Sample BY-20.25 is a block of unworked cultured quartz with naturally grown facets and uneven bubble-like bumps dispersed throughout it. Sample BY-XY-O, measures 7 7/8" x 2 13/16" x 13/32". The four corners have been beveled. The sample appears to be lightly polished and has a smooth surface. After importation, both of these blocks are cut into blanks, ground, and polished to create an optical element.

ISSUE:

Is the optical grade quartz classifiable as other unworked, or simply sawn or roughly cut synthetic semi-precious stones in subheading 7104.20.00, HTSUS, as other synthetic or reconstructed precious or synthetic semi-precious stones in subheading 7104.90.50, HTSUS, or as parts and accessories for machines, appliances, instruments, or apparatus of chapter 90 in subheading 9033.00.00, HTSUS?

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. The subheadings under consideration are as follows:

7104.20.00 Synthetic or reconstructed precious or semi- precious stones, whether or not worked or graded but not strung, mounted or set; ungraded synthetic or reconstructed precious or semiprecious stones, temporarily strung for convenience of transport: [o]ther, unworked or simply sawn or roughly shaped.

7104.90.50 Synthetic or reconstructed precious or semi- precious stones, whether or not worked or graded but not strung, mounted or set; ungraded synthetic or reconstructed precious or semi-precious stones, temporarily strung for convenience of transport: [o]ther: [o]ther.

9033.00.00 Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.

As imported, the merchandise is a material from which parts are to be made. Therefore, the blocks are not classifiable in subheading 9033.00.00, HTSUS, as parts and accessories for machines etc. of chapter 90 because additional grinding, cutting, and polishing must occur to make the quartz suitable for use as an optical element. Note 1(a) to Chapter 71 states that "[s]ubject to note 1(a) to section VI and except as provided below, all articles consisting wholly or partly ...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 Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 71.04, pgs. 954-955, states in pertinent part:

These stones are used for the same purposes as the natural precious or semi-precious stones of the two preceding headings.

(A) Synthetic precious and semi-precious stones. This expression covers a range of chemically produced stones which...:

- have essentially the same chemical composition and crystal structure as a particular natural stone...

...[t]he provisions of the Explanatory Notes to headings 71.02 and 71.03, especially as regards the working to which the stones may be submitted, are also applicable here....

EN 71.03, p. 953, states in pertinent part that this heading includes the precious or semi-precious stones listed in the Annex to Chapter 71, the names of the mineralogical species being given with the commercial names. The heading is restricted to those stones and varieties of a quality suitable for use in jewellery, etc. EN 71.02, pg. 952, states in pertinent part that the heading covers unworked stones, and stones worked, by cleaving, sawing, bruting, faceting, grinding, polishing, drilling, engraving provided they are not mounted.

According to your letter of 12/30/92, cultured quartz has the same properties as natural quartz. Additionally, the Annex to Chapter 71, pgs. 966-969, includes quartz as a semi-precious stone classifiable in heading 7104, HTSUS. Moreover, we are of the opinion that the quartz is of a quality suitable for use in jewellery. Finally, the two samples submitted meet the description of EN 71.02 in that one appears to be unworked and the other appears to be worked by sawing, and polishing. Inasmuch as the articles have the same properties of natural quartz, are listed in the Annex to Chapter 71 and are suitable for use in jewellery, and are worked or unworked, they are classifiable in heading 7104, HTSUS.

EN 71.04 states that the EN to subheading 7103.10 applies mutatis mutandis to this subheading. EN 7103.10, pg. 954, states in pertinent part that this subheading includes stones roughly worked by sawing (e.g. into thin strips), cleaving(splitting along the natural plane of the layers) or bruting, i.e. stones which have only a provisional shape and clearly have to be further worked. The strips may also be cut into discs, rectangles, hexagons, or octagons, provided all the surfaces and ridges are rough, matt and unpolished.

Sample BY-20-2.5 clearly meets this description. It has naturally rough facets. Furthermore, it appears that it has not been polished and its surface has not been smoothed. Therefore sample BY-20-2.5 is classifiable in subheading 7104.20.00, HTSUS.

Sample BY-XY-O, however, has been worked beyond the minimal amount described by EN 7103.10. It has been sawn into a rectangle shape, its surfaces are smooth and polished and its edges have clearly been beveled. Additionally, it contains none of the naturally occurring bubbles evident in sample BY-20-2.5. Therefore we find that sample BY-XY-O, is classifiable in subheading 7104.90.50, HTSUS.

HOLDING:

Sample BY-20-2.5, is classifiable in subheading 7104.20.00, HTSUS, with a column 1 duty rate of 6% ad valorem.

Sample BY-XY-O, is classifiable in subheading 7104.90.50, HTSUS, with a column 1 duty rate of 12.8% ad valorem.


Sincerely,

John Durant, Director