CLA-2 RR:CR:GC 961065 PH
Port Director
U.S. Customs Service
C/O Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest 1001-97-104386; dinnerware; mugs; teapots;
stoneware; coarse-grained; fine-grained; ceramic; U.S.
Additional Note 5(a), Chapter 69; Import Sales, Inc. v.
United States, 65 Cust. Ct. 168 (1970); House Conf. Report
100-576, April 20, 1988
Dear Port Director:
This is our decision on protest 1001-97-104386, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain stoneware dinnerware, mugs, and
teapots. Samples were provided.
FACTS:
The merchandise is invoiced as "dinnerware sets" and
"stoneware mugs and tea pots". There are letters from the
exporter in Hong Kong confirming that the merchandise is "truly
stoneware" and absorbs not more than 3% of its weight of water.
There is a sample mug, saucer, and bowl, all of standard shapes
with a dark blue color. The samples are labeled "stoneware."
The dinnerware was entered on December 17, 1996, with
classification under subheading 6912.00.48, HTSUS. The mugs and
teapots were entered on January 22, 1997, with classification
under subheading 6912.00.10, HTSUS. The entries were liquidated
on April 4 and May 30, 1997, respectively, with classification of
the dinnerware and teapots under subheading 6912.00.48, HTSUS,
and the mugs under subheading 6912.00.44, HTSUS.
The importer's broker filed this protest with Customs on
June 18, 1997, against the classification of the merchandise.
Stating that the protested entries are of stoneware dinner sets
and stoneware mugs and teapots, the protestant notes the
definition of "stoneware" in Additional U.S. Note 5(a), Chapter
69, HTSUS, and argues that all of the imported articles meet this
definition. The protestant seeks reclassification of the goods
under subheading 6912.00.10, HTSUS.
The subheadings under consideration are as follows:
6912.00.10: Ceramic tableware, kitchenware, other household
articles and toilet articles, other than of
porcelain or china: Tableware and kitchenware: Of
coarse-grained earthenware, or of coarse-grained
stoneware; of fine-grained earthenware, whether or
not decorated, having a reddish-colored body and a
lustrous glaze which, on teapots, may be any
color, but which on other articles must be
mottled, streaked or solidly colored brown to
black with metallic oxide or salt.
The 1996 and 1997 general column one rates of duty for goods
classifiable under this provision are, respectively, 1.1% and 1%
ad valorem.
6912.00.44: Ceramic tableware, kitchenware, other household
articles and toilet articles, other than of
porcelain or china: Tableware and kitchenware: ...
Other: ... Other: ... Other: ... Mugs and other
steins.
The 1996 and 1997 general column one rates of duty for goods
classifiable under this provision are, respectively, 12.1% and
11.4% ad valorem.
6912.00.48: Ceramic tableware, kitchenware, other household
articles and toilet articles, other than of
porcelain or china: Tableware and kitchenware: ...
Other: ... Other: ... Other: ... Other.
The 1996 and 1997 general column one rates of duty for goods
classifiable under this provision are, respectively, 10.8% and
10.5% ad valorem.
ISSUE:
Whether stoneware mugs, teapots, and dinnerware are
classifiable as ceramic tableware and kitchenware of coarse-grained stoneware in subheading 6910.00.10, HTSUS, or other
ceramic tableware and kitchenware in subheadings 6912.00.44 and
6912.00.48, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes. GRI 6 provides that for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, by appropriate substitution of
terms, to GRIs 1 through 5, on the understanding that only
subheadings at the same level are comparable.
The protestant contends that the merchandise is stoneware,
citing Additional U.S. Note 5(a) of Chapter 69, HTSUS. There is
no information to the contrary and Customs does not disagree.
However, this does not make the merchandise classifiable under
subheading 6912.00.10, HTSUS, as claimed by the protestant.
Subheading 6912.00.10, HTSUS, covers, in pertinent part, ceramic
tableware and kitchenware "of coarse-grained earthenware, or of
coarse-grained stoneware; of fine-grained earthenware [meeting
certain stated criteria]" (emphasis added). That is, coarse and
fine-grained earthenware (the latter meeting certain criteria)
are both covered, but only coarse-grained (and not fine-grained)
stoneware is covered.
This distinction between coarse-grained and fine-grained
earthenware (except for that meeting the stated criteria) and
stoneware continues a similar distinction which existed in the
Tariff Schedules of the United States (TSUS) (see U.S.
International Trade Commission Publication 2051 (January 1988),
page 205), which were replaced by the HTSUS effective January 1,
1989 (Trade and Competitiveness Act of 1988; Public Law 100-418;
102 Stat. 1107). See items 533.11 and 533.15, TSUS, for the
treatment under the TSUS of coarse-grained earthenware and
stoneware and fine-grained earthenware meeting the same criteria
found in subheading 6912.00.10, HTSUS. The headnotes for the
part in which the TSUS items are found contained definitions of
the terms "coarse-grained" and "fine-grained" (headnote 2(h) and
(i), Schedule 5, Part 2, TSUS). According to these definitions,
"the term coarse-grained', as applied to ceramic ware, embraces
such wares having a body made of materials none of which had been
washed, ground, or otherwise beneficiated" and "the term fine-grained', as applied to ceramic wares, embraces such wares having
a body made of materials any of which had been washed, ground, or
otherwise beneficiated". In Import Sales, Inc. v. United States,
65 Cust. Ct. 168, C.D. 4073 (1970), the Court upheld Customs
classification of certain kamado pots as fine-grained. The Court
stated that "[t]he terms coarse-grained' and fine-grained', as
defined [in the above-quoted headnotes], and as applied to
ceramic ware, are objectively tied to the question whether the
material in the body has been washed, ground, or otherwise
beneficiated. They [the terms] refer not so much to the texture
of the product as to the fact that the materials used are either
unrefined or refined. ...'" (65 Cust. Ct. at 170.)
Although decisions by the Court interpreting the TSUS are
not to be deemed dispositive in interpreting the HTS, "... on a
case-by-case basis prior decisions should be considered
instructive in interpreting the HTS, particularly where the
nomenclature previously interpreted in those decisions remains
unchanged and no dissimilar interpretation is required by the
text of the HTS" (House Conf. Report 100-576, April 20, 1988, pp.
549-550, 100th Cong., 2d Sess. (1988 U.S.C.C.A.N. 1547, 1582-1583); see also F. L. Smidth & Co. v. United States, 56 CCPA 77,
80, C.A.D. 958, 409 F.2d 1369 (1969)).
In this case, the nomenclature controlling this case (i.e.,
the distinction between coarse-grained and fine-grained
earthenware (with the noted exception) and stoneware) remains
unchanged and no dissimilar interpretation is required by the
text of the HTSUS. Furthermore, we note that the distinction
between coarse-grained and fine-grained earthenware and
stoneware, as stated in the above-quoted headnotes to the TSUS,
is consistent with the common and commercial meaning and that
tariff terms are to be construed in accordance with their common
and commercial meanings which are presumed to be the same (Nippon
Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380
(1982); Nylos Trading Company v. United States, 37 CCPA 71, 73,
C.A.D. 423 (1949)). For common and commercial meanings in this
regard, see The New Encyclopedia Britannica, Macropâdia (1975),
vol. 14, 892, Pottery, "Except for coarse earthenwares, which can
be made from clay as it is found in the earth, pottery is made
from special clays plus other materials mixed to achieve the
desired results" (at 894); The Encyclopedia Americana,
International Ed. (1980), vol. 22, 471, Pottery, "Stoneware clays
[have] fewer impurities [i.e., fewer than earthenware clays][;]
[a] stoneware body [i.e., the mixture of clays and other
materials worked to make the pottery] is usually a compound ..."
(at 471). "Because raw clay often contains sand and gravel,
before it is used it must be dried, pulverized, mixed with water,
and repeatedly sieved to squeeze out the excess water[;] [t]he
partially dried clay may then be mixed with other ingredients
..." (at 472); and The Chemistry and Physics of Clays and other
Ceramic Materials, Alfred B. Searle and Rex W. Grimshaw (3rd Ed.
1959), Stoneware, distinguishing between coarse stoneware and
fine stoneware (at 340-341).
It is uncontested that the merchandise under consideration
is stoneware. There is no evidence regarding the body (i.e., the
clay or mixture of clays and other materials) used to produce the
stoneware. The authorities quoted above regarding pottery and
stoneware indicate that stoneware is usually made from
beneficiated clay. In the absence of any evidence to the
contrary and on the basis of the foregoing authorities, we
conclude that the body used to produce the merchandise is made of
beneficiated materials. Accordingly, on the basis of the
nomenclature of the TSUS provisions which were predecessors to
the competing HTSUS provisions, a Court case interpreting that
nomenclature (Import Sales, supra), and the common and commercial
meaning of the terms involved, we conclude that the merchandise
is of other than coarse-grained stoneware. The merchandise is
covered by heading 6912, HTSUS (ceramic tableware, kitchenware,
other household articles and toilet articles, other than of
porcelain or china), and subheading 6912.00, HTSUS (tableware and
kitchenware), within heading 6912, HTSUS. Therefore, pursuant to
GRIs 1 and 6, the provisions under subheading 6912.00 for ceramic
tableware and kitchenware of other than coarse-grained stoneware
are applicable. Those provisions are subheading 6912.00.44,
HTSUS, for the mugs and 6912.00.48, HTSUS, for the remaining
items (in the latter, on the basis of the value information
available in the entry papers).
HOLDING:
The stoneware mugs, teapots, and dinnerware are classifiable
as other ceramic tableware and kitchenware in subheadings
6912.00.44 (the mugs) and 6912.00.48 (other articles), HTSUS.
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