RR:TC:MM 957520 MMC
Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044-3130
RE: Protest 2304-94-10060; ceramic sanitary ware; Additional
U.S. Note (5)a; Lewis, Trustee v. U.S., U.S v. Mercantil
Distribuidora S.A., et.al., U.S. v. Kurt Orban Co., U.S. vs. Twin
Wintons; Webster's Dictionary; HRL 058617; British Standard
5416; ASTM C242: Industrial Ceramics and Introduction to
Ceramics; HRLs 058617, 958647
Dear Port Director :
This is in response to Protest 2304-94-10060, which pertains
to the tariff classification of ceramic sanitary ware under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject sanitary ware consists of numerous entries of
water closet bowls, flush tanks and lavatories. Eleven pieces
of protestant's sanitary ware were tested. The results were as
follows:
CUSTOMS LABORATORY RESULTS
Report No.
Translucency
Water
Absorption
Munsell
Color
Conclusion
5-92-30707-001
Not translucent even in
very thin pieces
0.2%
<9
not
porcelain
5-94-30700-001
Translucent until 3.45mm
0.2%
>8.5
not
porcelain
5-94-30699-001
Translucent until 3.61mm
0.1%
>8.5
not
porcelain
5-94-30698-001
Translucent until 3.80mm
0.2%
>8.5
not
porcelain
5-94-30697-001
Translucent until 4.6mm
0.1%
>8.5
porcelain
5-94-30217-001
Not translucent even in
very thin pieces
0.14%
<9
not
porcelain
5-94-30285-001
Not translucent even in
very thin pieces
0.10%
<9
not
porcelain
5-94-31025-001
Translucent until 4.55mm
0.2%
>8.5
porcelain
5-94-31023-001
Translucent until 4.89mm
0.3%
>8.5
porcelain
5-94-31024-001
Translucent until 4.96mm
0.3%
>8.5
porcelain
5-94-30063-001
Translucent until 3.78mm
0.5%
<9
not porcelain
The subject goods were entered as sanitary ware of
porcelain/china under subheading 6910.10.00, HTSUS. Entries were
liquidated on December 3, 10, 17, and 27, 1993, January 3, 4,
7, 14, 21 and 28, 1994, February 4, 11, 18, and 25, 1994. In a
protest timely filed on March 2, 1994, protestant contends that
the ceramic sanitary ware is properly classified under subheading
6910.90.00, HTSUS, which provides for other sanitary ware.
ISSUES:
Whether the sanitary ware is classifiable as porcelain or
other sanitary ware for tariff purposes. What are the proper
testing methods for use in determining whether the subject
sanitary ware is classifiable as porcelain or other sanitary
ware?
LAW AND ANALYSIS:
The classification of merchandise under the Harmonized
Tariff Schedule of the United States (HTSUS) is governed by the
General Rules of Interpretation (GRIs). GRI 1, HTSUS, states, in
pertinent part, that for legal purposes, classification shall be
determined according to the terms of the headings and any
relative section or chapter notes. Goods classifiable under both
subheading 6910.10.00 and 6910.90.00 are, if they qualify,
subject to North American Free Trade Agreement (NAFTA) treatment.
The duty rate for goods qualifying for NAFTA treatment under
subheading 6910.10.00 is subject to a graduated reduction to
zero over a 10-year period, beginning in 1994. Duty for goods
qualifying for NAFTA treatment under subheading 6910.90.00 was
eliminated when the NAFTA was implemented by Pub. L. 103-182 on
December 8, 1993.
Chapter 69, HTSUS, provides for ceramic products. Heading
6910, HTSUS, provides as follows:
6910 Ceramic sinks, washbasins, washbasin
pedestals, baths, bidets, water closet bowls,
flush tanks, urinals and similar sanitary
fixtures:
6910.10.00 Of porcelain or
china.............................
05 Water closet bowls, flushometer type
10 Water closet bowls with tanks, in one piece.
15 Flush tanks
20 Other water closet bowls
30 Sinks and lavatories
50 Other
6910.90.00 Other........................................................
Additional U.S. Note 5(a) to Chapter 69, HTSUS, states that: For
the purposes of headings 6909 through 6914:
(a) The terms "porcelain," "china" and "chinaware" embrace
ceramic ware (other than stoneware), whether or not glazed
or decorated, having a fired white body (unless artificially
colored) which will not absorb more than 0.5 percent of its
weight of water and is translucent in thicknesses of several
millimeters. The term "stoneware" as used in this note,
embraces ceramic ware which contains clay as an essential
ingredient, is not commonly white, will absorb not more than
3 percent of its weight of water, and is naturally opaque
(except in very thin pieces) even when absorption is less
than 0.1 percent.
Protestant claims that use of Additional U.S. Note 5(a), as a
sanitary ware porcelain definition is flawed because the
definition is only accurate for determining the porcelain nature
of dinnerware. In place of Additional U.S. Note 5(a), protestant
suggests that Customs should adopt the "china" sanitary ware
definition employed by the industry and scientific community.
Under the Tariff Schedules of the United States (TSUS), the
precursor to the HTSUS, sanitary ware was classifiable under item
535.31. This provision simply drew a distinction between
"plumbing fixtures" and "other" sanitary ware. When Congress
replaced the TSUS with the HTSUS, effective January 1, 1989, it
restructured the provisions so that sanitary ware was now
classified based on its composition, not on its form. This
restructuring was affected by expanding the scope of the
porcelain definition, which under the TSUS, applied mainly to
dinnerware and other household ceramics, to include what was
known under the TSUS as "industrial ceramics" (sanitary and
laboratory ware).
By its terms Additional U.S. Note 5(a) applies to heading
6910. Therefore, Customs must apply the Note as written and
cannot substitute definitions advanced by the trade in its stead.
When Congress has promulgated clear and explicit language in a
statute or demonstrated clear legislative intent, as it has here
with Additional U.S. Note 5(a), Customs must apply the language
in the form promulgated. Customs may not ignore or alter the
Note, nor may it apply legislative cannons of construction to
interpret the Note's language. Lewis, Trustee v. U.S., 92 U.S.
618, 23 L. Ed. 513 (1876). Moreover, the meaning of a word for
tariff purposes may or may not have the same meaning as that word
has when used in other governmental regulations. U.S v. Mercantil
Distribuidora S.A., et.al., 43 CCPA 111, 116 C.A.D. 617 (1956) .
Additional U.S. Note 5(a) applies not only to dinnerware of
headings 6911-12, but also to headings 6909, 6910, 6913 and 6914
which provide for laboratory, sanitary and ornamental wares. The
McGraw-Hill Encyclopedia of Science & Technology, Vol. 14, p.186
(McGraw-Hill Inc. 6th ed. 1987) states, in pertinent part, that:
Porcelain is distinguished from other fine ceramic ware,
such as china, by the fact that the firing of the unglazed
ware (the bisque firing) is done at a lower temperature
(1800-2200§F or 1000-1200§C) than the final or glost firing,
which may be as high as 2700§F (1500§C). In other words,
the ware reaches its final state of maturity at the maturing
temperature of the glaze.
The white color is obtained by using very pure white-firing
kaolin or china clay and other pure materials, the low
absorption results from the high firing temperature, and the
translucency results from the glass phase.
The term porcelain has been applied to such items as
electrical insulators and bathroom fixtures. Very often
these are made in a one-fire process, the glaze being
applied to the green or unfired ware; where this is the case
and high-grade materials are used in compounding the body,
the term porcelain may be correctly applied. However, the
pieces have no translucency because of their great
thickness.
While this scientific evidence and protestant's industry evidence
seems to indicate that the presence and amount of certain
porcelain characteristics, particularly translucency, should
vary based on the ware's use and form, the application of
Additional U.S. Note 5(a) requires that Customs must determine if
all types of ware classifiable in headings 6909-6914 have every
porcelain characteristic provided for in the Note; regardless of
the dinnerware origins of such characteristics.
Additional U.S. Note 5(a) specifically excludes "stoneware"
from classification within the scope of the term "porcelain". By
application of GRI 1, particular pieces of sanitary ware that
meet the definition of both porcelain and stoneware are
therefore, only classifiable as "other". Accordingly, to
determine the proper classification, Customs first determines
whether a subject piece meets the porcelain definition. If the
piece does not satisfy the criteria for porcelain, it is not
classifiable as such. If the piece meets the porcelain
definition, Customs then determines whether it meets the
stoneware definition. If the sanitary ware meets the stoneware
definition, it is regarded as "stoneware" and therefore is
classifiable as "other" sanitary ware.
PORCELAIN CHARACTERISTICS
Additional U. S. Note 5(a) provides three characteristics
the presence of which, in certain amounts, indicates an article
is "porcelain" for tariff purposes. Those characteristics are
water absorption, color and translucency.
WATER ABSORPTION
The testing method and parameters for the water absorption
characteristic are provided by Additional U. S. Note 5(d) to
Chapter 69 wherein it indicates that the water absorption of a
ceramic body shall be determined by the American Society for
Testing and Materials (ASTM) test method designated C373.
However, specific methodologies and parameters for translucency
and whiteness are not outlined by the Note.
COLOR
Customs applies the Munsell Color System to determine
whether a particular piece of non-artificially colored sanitary
ware meets the "white" characteristic. Non-artificially colored
sanitary ware having a Munsell color of N 8.5 or lighter (in a
neutral color shade having a chroma of 0 to 0.5) meets the"white"
characteristic of the porcelain definition. This measurement is
accepted by the international trade scientific community
including U.S. Customs, the U.S. Commerce Department as well as
the Canadian Customs Administration. A value of 8.5 is adequate
for the purpose of Additional U.S. Note 5(a), as true earthenware
and stoneware measure nowhere near 8.5 . In accordance with
Additional U.S. Note 5(a), artificially colored sanitary ware
cannot be tested for whiteness. We note that this methodology is
one which can uniformly apply to all types of wares and had been
the methodology used under the TSUS. See Headquarters Ruling
Letter (HRL) 058617 dated March 20, 1979, which informs a
requester that the Munsell color system is the one Customs uses
to test for whiteness. As this method uniformly applies, we have
merely continued its use.
TRANSLUCENCY
Translucency, as a porcelain characteristic is expressed in
the phrase "in thicknesses of several millimeters". In the
March 8, 1996, Federal Register Notice, Customs proposed the
possible adoption of British Standard (BS) 5416 as the
methodology which would determine whether a particular article
met the "thickness of several millimeters" requirement of the
porcelain definition. BS 5416 states that articles which are
translucent at 2mm are considered porcelain. However, the
standard continues, stating that " [the standard] does not
purport to have any relevance in the field of technical or
industrial ceramics such as sanitary or electrical ceramics, nor
does it cover any other aspects of fitness for purpose." Based
on this language, we have concluded that BS 4516 is not broad
enough to apply to the phrase "thickness of several millimeters"
under the HTSUS. Several is defined in Webster's Dictionary as
being more than two or three but not many. Based on this
definition, since the introduction of the HTSUS, Customs has
considered articles which remain translucent under 4mm regardless
of their actual thickness, ones which meet the "translucent in
thicknesses of several millimeters" porcelain characteristic. We
continue to believe 4mm best reflects the term "several"
millimeters when applied to all the wares which are covered by
the porcelain definition. Therefore, a piece of sanitary ware
which remains translucent at 3.9mm, meets all other porcelain
characteristics and is not disqualified because it is stoneware,
is considered "porcelain" for tariff purposes.
We note that a 7 watt light source was the strength used by
the court in U.S. vs. Twin Wintons, 535 F.2d 636 (CCPA 1976)
rev'd. 395 F.Supp 1397 (1975) [Twin Wintons] to determine
translucency. In Twin Wintons, the U.S. Court of Customs and
Patent and Appeals (CCPA) reversed a U.S. Customs Court decision
sustaining an importer's claim that ceramic decanters (household
articles) were dutiable as fine-grained stoneware articles rather
than articles of non-bone chinaware. The Court's opinion does not
discuss which methodology was employed to reach the test's
conclusion, nor was Customs able to determine on what scientific
basis the 7 watt light source was chosen. Congress has indicated
that earlier tariff decisions must not be disregarded in applying
the HTSUS. The conference report to the Omnibus Trade Bill of
1988, states that "on a case-by-case basis prior decisions should
be considered instructive in interpreting the HTSUS, particularly
where the nomenclature previously interpreted in those decisions
remains unchanged and no dissimilar interpretation is required by
the text of the HTS[US]." H. Rep. No. 100-576, 100th cong., 2d
Sess. 548, 550 (1988). As demonstrated above, the article to
which the TSUS nomenclature applied drastically changed with the
adoption of the HTSUS. Therefore, while Customs has always found
Twin Wintons informative, it is not controlling for the
classification of sanitary ware under the HTSUS. However, in the
absence of a better, more scientific wattage or light source,
Customs has and will continue to use the 7 watt light source
suggested in Twin Wintons to determine translucency.
Protestant has suggested that a ceramic sanitary ware
standard of 6mm be adopted because plumbing fixtures are never
sold at a thicknesses of less than 6mm. Customs will not adopt a
new 6mm standard. It is our understanding that almost no piece
of sanitary ware is translucent at 6mm. Adoption of such a
standard would result in no sanitary ware being classified as
"porcelain" for tariff purposes. The mere fact that Congress
provided for a porcelain sanitary ware subheading indicates that
not only the methodology but also evaluation for "thickness in
several millimeters" characteristic must result in the inclusion
of some sanitary ware as porcelain for tariff purposes.
Additionally, Customs must use the same testing methodologies and
parameters for all types of ware classifiable in headings 6909-6914, when testing for each specific porcelain or stoneware
characteristics.
STONEWARE
Additional U.S. Note 5(a) excludes from a porcelain
classification any article which meets the stoneware definition.
The stoneware definition states that stoneware embraces ceramic
ware which contains clay as an essential ingredient, is not
commonly white, will absorb not more than 3% of its weight of
water, and is naturally opaque (except in very thin pieces) even
when water absorption is less than 0.1%. Methodologies for
testing ceramic ware and water absorption characteristics are
provided by Additional U.S. Notes 1 and 5(d) to Chapter 69,
respectively.
COLOR
Customs also applies the Munsell Color System to determine
whether a particular piece of non-artificially colored sanitary
ware meets the "not commonly white" characteristic. As the
parameter for "white" is a Munsell color of 8.5 or above (in a
neutral color shade having a chroma of 0 to 0.5), consistency
requires that a Munsell color of below N 8.5 (in a neutral color
shade having a chroma of 0 to 0.5) indicates that an article
meets the "not commonly white body" characteristic. In
accordance with Additional U.S. Note 5(a), artificially colored
sanitary ware cannot be tested for color.
CLAY
Concerning the clay characteristic, in Twin Wintons, the
Court record indicates that the plaintiff produced no evidence as
to how the imported decanters were manufactured or of what
materials they were manufactured. Plaintiff relied upon the
test results which shows the main part of the body to be clay.
That, according to the Court, was some evidence that clay is an
essential ingredient of the decanter. While we consider Twin
Wintons informative in limited instances, it has never been
controlling for the classification of sanitary ware. Twin
Wintons is based on the TSUS nomenclature. As noted above, the
sanitary ware provision drastically changed with the adoption of
the HTSUS. Composition and not form now controls the
classification of sanitary ware under the HTSUS. The Court
record for Twin Wintons indicates that the plaintiff produced no
evidence as to how the imported decanters were manufactured or of
what materials they were manufactured. The Court's finding was
based on a demonstration of the mere presence of an undefined
"clay" and fails to indicate which methodology was employed to
reach this "clay" conclusion. Therefore, it is not instructive
for the classification of sanitary ware under the HTSUS.
The ASTM C242, entitled Industrial Ceramics and Introduction
to Ceramics is an introduction to ceramic methodologies and
clearly indicates that both porcelain and stoneware are made from
clay. This was recognized in Twin Wintons, and is also
recognized by the scientific and trade communities.
Furthermore, Twin Wintons and the scientific and trade
communities recognize that, in general, stoneware articles are
made from ball clays, as opposed to porcelain's kaolinic clays.
Therefore, while clay can be a determining factor it is its kind
and not merely its presence which can be indicative of an
article's porcelain or stoneware nature.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be utilized. The ENs, although not dispositive nor legally
binding, 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). GEN EN to Chapter 69, HTSUS, states, in
pertinent part, that:
(I) PORCELAIN OR CHINA
Porcelain or china means hard porcelain, soft porcelain,
biscuit porcelain (including parian) and bone china. All
these ceramics are almost completely vitrified, hard, and
are essentially impermeable (even if they are not glazed).
They are white or artificially coloured, translucent (except
when of considerable thickness), and resonant.
Hard porcelain is made from a body composed of kaolin (or
kaolinic clays), quartz, felspar (or felspathoids), and
sometimes calcium carbonate. It is covered with a colourless
transparent glaze fired at the same time as the body and
thus fused together.
Soft porcelain contains less alumina but more silica and
fluxes (e.g., felspar). Bone china, which contains less
alumina, contains calcium phosphate (e.g., in the form of
bone ash); a translucent body is thus obtained at a lower
firing temperature than with hard porcelain. The glaze is
normally applied by further firing at a lower temperature,
thus permitting a greater range of underglaze decoration.
Biscuit porcelain is unglazed porcelain, of which
parian-ware (sometimes called Carrara porcelain) is a
special, fine-grained, yellowish type containing more
felspar, and often resembling Paros marble in appearance,
hence its name.
(II) OTHER CERAMIC PRODUCTS
Ceramic products other than of porcelain or china include:
* * *
(B) Stoneware which, though dense and hard enough to resist
scratching by a steel point, differs from porcelain because
it is opaque and normally only partially vitrified.
Stoneware may be a vitreous (impermeable) or semi-vitreous
ware. It is usually grey or brownish because of impurities
contained in the clay used for its manufacture, and is
normally glazed...
While these explanations are helpful, Customs recognizes
that the adoption of Additional U.S. Note 5(a) broadened the
scope of the tariff term "porcelain" to include sanitary and
laboratory wares and that such wares can be composed of ball
clays. Therefore, a bright line distinction between clays and
the wares they create, cannot be adopted for tariff purposes.
Rather, Customs does, on a case-by-case basis consider all
evidence submitted concerning an article's clay composition. We
note that evidence of ball clays includes, but is not limited to
demonstrating that the clay used contained a significant amount
of iron oxide. The test for iron oxide content is a standard
procedure described in ASTM C323.
OPAQUENESS
The characteristic "naturally opaque (except in very thin
pieces) even when water absorption is less than 0.1%", is, for
the purposes of consistency, determined in the same manner as
porcelain's translucency because both opacity and translucency
are a function of the intensity of visible light and the
thickness of the tested material. Protestant has suggested that
Customs adopt the "plain meaning" of "naturally opaque" and test
an article at it original thickness.
Adoption of the plain meaning of "naturally opaque" would
require Customs to test sanitary ware in its original form.
Sanitary ware, because of other Governmental regulations, never
measures less than 6mm thick and is frequently thicker. A 7 watt
light source is not capable of penetrating 6mm. Adoption of the
plain meaning would result in no sanitary ware being classified
as "porcelain" for tariff purposes. As stated, the mere fact
that Congress provided for a porcelain sanitary ware subheading
indicates that not only the methodology but also the evaluation
of "naturally opaque" characteristic must result in the
classification of some sanitary ware as porcelain.
Furthermore, because Customs must use the same testing
methodologies and parameters for all types of ware classifiable
in headings 6909-6914, when testing for each specific porcelain
or stoneware characteristic, Customs applies a parameter that
best reflects the term "opaque" when applied to all heading 6909-6914 articles. Heading 6909-6914 articles which become opaque at
2mm, regardless of their actual thickness, are within the scope
of the criteria "naturally opaque (except in very thin pieces)."
A determination of opaqueness at 2mm addresses the concern
expressed in the parenthetical phrase (except in very thin
pieces).
The laboratory reports indicate the subject entries contain
a mixture of both "porcelain" and "other" sanitary ware. While
these lab results indicate a mixture of merchandise they are only
indicative of the particular entries tested. Customs requires
additional information to determine which entries are not
porcelain for tariff purposes. That information would include
either lot quality control reports which demonstrate the
requisite stoneware water absorption, opaqueness, color and raw
materials, or information which indicates a scientifically
significant difference in firing temperature or time between
protestant's known porcelain sanitary ware and other sanitary
ware. Additionally, protestant must also be able to
sufficiently link this information to specific entries. See HRL
958647 of this date.
HOLDING:
The protest should be DENIED except to the extent that the
requisite additional information indicates a need for
reclassification of the merchandise and such reclassification
results in a partial duty allowance.
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 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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels. A copy of this
decision should be attached to the Customs Form 19, Notice of
Action on the protest, to be returned to the protestant.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division