RR:TC:MM 958647 MMC
Mr. Jack L. Huss
President, CEO
Briggs Industries Incorporated
4350 W. Cypress Street, Suite 800
Tampa, FL 33607
RE: Mexican-Made Sanitary Ware; Domestic Interested Party
Petition; HRLs 058617, 957520
Dear Mr. Huss:
This is in response to your domestic interested party
petition, filed November 8, 1995, pursuant to Section 516, Tariff
Act of 1930, as amended (19 U.S.C. 1516) and Part 175, Customs
Regulations (19 CFR Part 175), concerning the tariff
classification of Mexican-made sanitary ware under the Harmonized
Tariff Schedule of the United States (HTSUS). Sanitary ware is
provided for under heading 6910, HTSUS, as ceramic sinks,
washbasins, washbasin pedestals, baths, bidets, water closet
bowls, flush tanks, urinals and similar sanitary fixtures. We
regret the delay in responding.
FACTS:
Pursuant to 19 U.S.C. 1516 and 19 CFR Part 175, Customs
published a notice in the Federal Register (61 FR 9521) on March
8, 1996, soliciting comments on your petition. You believe that
all Mexican-made sanitary ware is classifiable under subheading
6910.10.00, HTSUS, as porcelain or china sanitary ware, and
challenge Customs classification of some imported sanitary ware
under subheading 6910.90.00, HTSUS, as "other" sanitary ware,
claiming that the classification is based on faulty tariff
definitions for "porcelain", "china", "chinaware" and
"stoneware". Additionally, you claim that Customs has always
classified imported sanitary ware as "porcelain", and its change
in policy thwarts the intended purposes of the North American
Free Trade Agreement (NAFTA).
Twelve comments and two explanations of sanitary ware
classification practices from other customs administrations were
received in response to the notice.
ISSUES:
Whether sanitary ware was properly classified as "other"
ceramic sinks, washbasins, washbasin pedestals, baths, bidets,
water closet bowls, flush tanks, urinals and similar sanitary
fixtures under subheading 6910.90.00? What methodologies are
used to determine whether a piece of sanitary ware meets the
tariff definitions for "porcelain", "china", "chinaware" and
"stoneware"?
LAW AND ANALYSIS:
The classification of merchandise under the 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.
You claim 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), you
suggest that Customs adopt the "china" sanitary ware definition
employed by the industry and scientific community.
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) .
Finally, even were Customs to agree that there is substantial
doubt as to the construction Congress intended to give to
Additional U.S. Note 5(a), the U.S. Court of Customs Patent and
Appeals (now the U.S. Court of Appeals for the Federal Circuit)
has held that it is proper to resolve the doubt in favor of the
importer. U.S. v. Kurt Orban Co., 47 CCPA 28, C.A.D. 724 (1959).
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 and 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.
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).
From 1989 to 1993 most importers entered sanitary ware under
subheading 6910.10.00 as porcelain on the understanding that it
met the Additional U.S. Note 5(a) definition. As a consequence
of the expansion of the porcelain definition, Customs began a
review of the methodologies used to determine whether a ceramic
article, namely dinnerware and now laboratory, industrial and
sanitary wares, met the tariff provided definitions of porcelain
or stoneware. In an effort to maintain uniformity, Customs
revised and adopted a series of testing methodologies for all
types of ware now covered under the HTSUS, which were applied
when testing for each specific porcelain or stoneware
characteristic. In 1993, a series of the imported pieces were
tested to determine if they met the HTSUS porcelain definition.
Review of the test results indicated that some sanitary ware
articles did not. The pieces which did not were reclassified
under subheading 6910.90.00 as "other" sanitary ware.
By the notice published in the Federal Register (61 FR 9521)
on March 8, 1996, Customs provided an overview of porcelain and
stoneware classification issues. Included in that review was a
discussion of various methodologies used under the TSUS, when the
only ceramic articles covered by the porcelain and stoneware
definitions were dinner and other household wares, as well as
some of the methodologies used since 1989 and the expanded
application of the porcelain and stoneware definitions. Careful
review of information available to Customs as well as the
comments received in response to the notice, indicated confusion
as to which methodologies were applicable for determining whether
a particular ware met the porcelain or stoneware definition.
Therefore, we have determined that it is necessary to provide an
explanation of which methodologies Customs applies under the
HTSUS to determine whether a particular article evidences the
necessary characteristics to meet the Note provided definitions
of porcelain and/or stoneware. As part of Customs continuing
efforts to clearly and completely inform the public with regard
to classification issues, we are providing that explanation
below. While some initial confusion may have existed and this is
the first time that a complete explanation of these HTSUS
methodologies has been made available to the public, these have
nevertheless been the methodologies Customs has employed since
the adoption of the HTSUS.
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 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 color. 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 system is the one
Customs uses to test for color. As this method uniformly
applies, we have 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 5416 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] in determining
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 in determining translucency.
A commentor 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 as
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 EXCEPTION AND CHARACTERISTICS
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. A commentor 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).
Finally we note that should Customs laboratory reports
indicate a particular importer's entries contain a mixture of
both "porcelain" and "other" sanitary ware, such reports 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 the
importer's known porcelain sanitary ware and other sanitary ware.
Moreover the importer must also be able to sufficiently link this
information to specific entries for which he requests
reliquidation. See HRL 957520 of this date.
HOLDING:
To determine proper classification of sanitary ware, Customs
has and will continue to first determine whether a subject piece
meets the porcelain definition by applying the methodologies
discussed above. 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.
Heading 6910 provides for ceramic sinks, washbasins,
washbasin pedestals, baths, bidets, water closet bowls, flush
tanks, urinals and similar sanitary fixtures. If imported
sanitary ware meets the tariff provided definition of porcelain,
the subject merchandise is classifiable under subheading
6910.10.00, HTSUS, as sanitary ware of porcelain or china. If it
does not or if it meets both the porcelain and stoneware
definitions, it is classifiable under subheading 6910.90.00,
HTSUS, as other sanitary ware.
In accordance with section 516(c), Tariff Act of 1930, as
amended (19 U.S.C. 1516(c)), if you are dissatisfied with this
decision and desire a judicial review of the matter, please file
with the Commissioner of Customs, as delegate of the Secretary of
the Treasury, not later than 30 days after the date of this
decision, notice in triplicate, that you desire to contest the
classification of the merchandise. The notice should designate
the port or ports at which such merchandise is being imported
into the United States and at which you desire to protest. See
19 CFR 175.23 and 19 CFR 175.24.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division