CLA-2 OT:RR:CTF:CPM H256434 CkG
TARIFF NO: 6815.99.4070
Ms. Yolanda Massey
Michaels Stores Procurement Company, Inc. 8000 Bent Branch Drive
Irving, TX 75063
RE: Revocation of NY M86055; classification of decorative quartz rocks
Dear Ms. Massey:
This letter is in regards to New York Ruling Letter (NY) M86055, issued to
Michaels Stores Procurement Company, Inc. on August 21, 2006. In NY M86055, CBP classified decorative quartz river rocks in heading 7103 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Precious stones (other than diamonds) and semiprecious stones, whether or not worked or graded but not strung, mounted or set; ungraded precious stones (other than diamonds) and semiprecious stones, temporarily strung for convenience of transport.” We have reconsidered this decision, and for the reasons set forth below, we have determined that the quartz rocks are correctly classified in heading 6815, HTSUS.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY M86055 was published on November 29, 2017, in Volume 51, Number 48 of the Customs Bulletin. No comments were received in response to that notice.
FACTS:
The subject merchandise was described in NY M86055 as follows:
The submitted sample consists of 28 ounces of decorative natural river rocks made of quartz that have been tumbled and dyed powder blue, packed in a plastic net sack. The rocks are for use in floral arrangements, candle displays, fountains and aquariums.
ISSUE:
Whether the instant quartz rocks are classified in heading 2506, HTSUS, as
quartz; in heading 6802, HTSUS, as worked monumental or building stone, mosaic
cubes, or artificially colored granules, chippings and powder; in heading 6815, HTSUS,
as other articles of stone or of other mineral substances; or in heading 7103, HTSUS,
as precious or semiprecious stones.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS provisions under consideration are as follows:
2506: Quartz (other than natural sands); quartzite, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape:
6802: 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):
6815: Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included:
7103: Precious stones (other than diamonds) and semiprecious stones, whether or not worked or graded but not strung, mounted or set; ungraded precious stones (other than diamonds) and semiprecious stones, temporarily strung for convenience of transport:
* * * *
Note 1 to Chapter 25 provides as follows:
Except where their context or note 4 to this chapter otherwise requires, the headings of this chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading.
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Explanatory Note to Chapter 25 provides as follows:
As provided in Note 1, this Chapter covers, except where the context otherwise requires, mineral products only in the crude state or washed (including washing with chemical substances to eliminate impurities provided that the structure of the product itself is not changed), crushed, ground, powdered, levigated, sifted, screened or concentrated by flotation, magnetic separation or other mechanical or physical processes (not including crystallisation). The products of this Chapter may also be heated to remove moisture or impurities or for other purposes, provided that the heat treatment does not modify their chemical or crystalline structures. However, other heat treatments (e.g., roasting, fusion or calcination) are not allowed, unless specifically permitted by the heading text. Thus, for example, heat treatment which could entail a change in chemical or crystalline structure is allowed for products of headings 25.13 and 25.17, because the texts of these headings explicitly refer to heat treatment.
The products of this Chapter may contain an added anti dusting agent, provided that such addition does not render the product particularly suitable for specific use rather than for general use. Minerals which have been otherwise processed (e.g., purified by re crystallisation, obtained by mixing minerals falling in the same or different headings of this Chapter, made up into articles by shaping, carving, etc.) generally fall in later Chapters (for example, Chapter 28 or 68).
In certain cases, however, the headings :
Refer to goods which by their nature must have been subjected to a process not
provided for by Note 1 to this Chapter. Examples include pure sodium chloride (heading 25.01), certain forms of refined sulphur (heading 25.03), chamotte earth (heading 25.08), plasters (heading 25.20), quicklime (heading 25.22) and hydraulic cements (heading 25.23).
Specify conditions or processes which are admissible in those cases in addition to
those allowed generally under Note 1 to this Chapter. For example, witherite (heading 25.11), siliceous fossil meals and similar siliceous earths (heading 25.12) and dolomite (heading 25.18) may be calcined; magnesite and magnesia (heading 25.19) may be fused or calcined (dead burned (sintered) or caustic burned). In the case of dead burned (sintered) magnesia, other oxides (e.g., iron oxide, chromium oxide) may have been added to facilitate sintering. Similarly the materials of headings 25.06, 25.14, 25.15, 25.16, 25.18 and 25.26 may be roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape.
When products are classifiable in heading 25.17 and any other heading of this Chapter, they are to be classified in heading 25.17.
The Chapter excludes precious or semi precious stones of Chapter 71.
The Explanatory Note to heading 2506 provides as follows:
Quartz is the naturally occurring crystal form of silica.
It falls in this heading only if complying with both of the following two conditions :
It must be in the crude state or have not undergone any process beyond that
allowed in Note 1 to this Chapter; for this purpose, heat treatment designed solely to facilitate crushing is regarded as a process permitted by Chapter Note 1.
It must not be of a variety and quality suitable for the manufacture of
gem stones (e.g., rock crystal and smoky quartz, amethyst and rose quartz). Such quartz is excluded (heading 71.03), even if intended to be used for technical purposes, e.g., as piezo electric quartz or for the manufacture of parts of tools.
EN 68.02 provides, in pertinent part, as follows:
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. ….
The heading therefore covers stone which has been further processed than mere shaping into blocks, sheets or slabs by splitting, roughly cutting or squaring, or squaring by sawing (square or rectangular faces).
The heading thus covers stone in the forms produced by the stone-mason, sculptor, etc., viz. :
…
(B) Stone of any shape (including blocks, slabs or sheets), whether or not in the
form of finished articles, which has been bossed (i.e., stone which has been given a “rock faced” finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc.
…
Articles of worked monumental or building stone are usually obtained from the stones of heading 25.15 or 25.16, but may also be obtained from any other natural stone except slate (e.g., quartzite, dolomite, flint, steatite)
EN 71.03 provides, in pertinent part, as follows:
Because of their colour, brilliance, resistance to deterioration, and often also because of their rarity, these stones, which are usually crystalline, are used by jewellers, goldsmiths and silversmiths for making articles of adornment or ornamentation. Some are also used in clocks and watches or in tools or, because of their hardness or other special properties, for other industrial purposes (e.g., ruby, sapphire, agate, piezo-electric quartz).
The provisions of the second paragraph of the Explanatory Note to heading 71.02 apply, mutatis mutandis, to this heading.
The stones of this heading are therefore mainly stones intended for mounting or setting in jewellery or goldsmiths’ or silversmiths’ wares; but, provided they are unmounted, the heading also covers stones for setting in tools of headings 82.01 to 82.06 or in machinery, etc., of Section XVI (e.g., piezo-electric quartz for high frequency apparatus, etc.).
…
The heading includes the precious or semi-precious stones listed in the Annex to this Chapter, the name of the mineralogical species being given with the commercial names; the heading is, of course, restricted to those stones and varieties of a quality suitable for use in jewellery, etc.
This heading also excludes :
(a) Certain stones which, although belonging to the mineral species cited above, are of non-precious varieties, or of a quality not suitable for use in jewellery, goldsmiths’ or silversmiths’ wares; such stones are classified in Chapter 25, 26 or 68.
* * * *
In NY M86055, CBP classified various tumbled and dyed quartz rocks in heading 7103, HTSUS, which provides for precious or semiprecious stones, whether or not worked or graded. The mineralogical names of the precious and semi-precious stones covered by heading 7103 are listed in the Annex to Chapter 71 of the HTSUS, which includes the following varieties of quartz: Quartz Agate, Fire Agate, Onyx, Sardonyx, Amethyst, Aventurine, Blue Quartz, Chalcedony, Chrysoprase, Citrine, Yellow Quartz, Cornelian, Green Quartz, Prasiollite, Heliotrope, Bloodstone, Jasper, Silex, Morion, Cairngorm, Moss-Agate, Agate Dendritic, Banded Agate, Prase, Quartz Cat’s-eye, Quartz Falcon’s-eye, Quartz Tiger’s-eye, Rock Crystal, Quartz, Rose-Quartz, Smoky Quartz, and Violet Quartz.
There is no indication that the instant quartz rocks pertain to any of the types listed in the Annex. Moreover, the Explanatory Note to heading 71.03 clearly indicates that precious or semiprecious stones of this heading are used either for mounting into articles of jewelry, in watches or clocks, or for certain industrial tools. Excluded from this heading are stones which, even if of a mineral species which can be considered precious or semiprecious, are not of a quality suitable for use in jewelry; such stones are classified in Chapter 68.
Although the instant rocks are quartz, they are not used in either jewelry or in clocks or industrial tools. Furthermore, they are not of a quality suitable for use in such applications; that they are dyed to give them the appearance of a precious or semiprecious stone clearly indicates that they are not of sufficient quality to be considered as such even when worked and polished. Consequently, the instant quartz rocks are excluded from classification in heading 7103, HTSUS.
Depending on whether or not the instant quartz stones are “worked” beyond the level specified in Note 1 to Chapter 25, they may be classified in either Chapter 25 or Chapter 68. Unworked quartz is classified in heading 2506, HTSUS. Pursuant to Note 1 to Chapter 25 as well as the text of heading 2506, such stone is considered “worked” beyond the scope of Chapter 25 if it has been processed in a manner other than crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes, trimmed or cut into blocks or slabs of a rectangular (including square) shape. Here, the stones have been tumbled in a tumbling machine. Tumbling is a technique for smoothing and polishing a rough surface on a stone. Neither tumbling nor polishing are listed as acceptable processes in Note 1 to Chapter 25 or the text of heading 2506.
No explanation is provided in the HTSUS or in EN 25.06 of what “other mechanical or physical processes” (as mentioned in Note 1 to Chapter 25) are permitted; however, the general EN to Chapter 25 indicates that the intent of the exclusionary language is to exclude those products which have been processed into articles by cutting and shaping or by heat treatment. The classification of such articles is directed to later Chapters, such as Chapter 68. Heading 6802, for example, covers natural monumental or building stone which has been worked beyond the stage of the normal quarry products of Chapter 25, including, as discussed in the EN to that heading, “Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a “rock faced” finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved, etc.” Polishing and dying the instant stones have therefore resulted in a product of Chapter 68 “worked” beyond the scope of Chapter 25. See also HQ H003883, dated June 07, 2007.
Having determined that neither Chapter 25 nor Chapter 71 is applicable to the instant merchandise, we turn to Chapter 68. In Chapter 68, two provisions are at issue: heading 6802 (monumental or building stone; mosaic cubes and the like, of natural stone; artificially colored granules, chippings and powder, of natural stone) or heading 6815 (other articles of mineral substances). Quartz can be used as a component in construction material, as an ingredient in granite and other building stones, and even directly as a building stone. Here, however, we have rocks composed entirely of quartz; the mineral here is not agglomerated or part of a granite or quartzite building stone. Nor are the instant rocks suitable for use as building stones. The quartz rocks are therefore not monumental or building stone of heading 6802. Further, they are not similar to mosaic cubes, and they are not granules, chippings or powder. Thus, they are not described by heading 6802, HTSUS. The instant river rocks are classified in heading 6815, HTSUS, as other articles of mineral substances.
HOLDING:
By application of GRIs 1 and 6, the instant river rocks are classified in heading 6815, HTSUS, specifically in subheading 6815.99.4070, HTSUSA, which provides for “Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: Other articles: Other: Other: Other.” The 2017 column one, general rate of duty is Free.
EFFECT ON OTHER RULINGS:
NY M86055, dated August 21, 2006, is hereby revoked.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days
after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division