CLA-2 OT:RR:CTF:CPM HQ H276845 MAB
Port Director
U.S. Customs and Border Protection
715 Bob Bullock Loop
World Trade Bridge
Laredo, TX 78045-7846
RE: Internal Advice #10/108; Classification of Ceramic Toilets and Other Sanitary Fixtures
Attn: Yolanda Sanchez, Import Specialist
Dear Port Director:
The following is in response to your memorandum, request for Internal Advice in accordance with 19 CFR 177.11(b)(4), concerning the proper classification of Ceramic Toilets and Other Sanitary Fixtures, from Mexico, under the Harmonized Tariff Schedule of the United States (HTSUS). Your request was initiated by letter dated May 9, 2016, by Lawrence W. Hanson, P.C., on behalf of his clients, Procesadora de Ceramica de Mexico S.A. de C.V. (Ceramica) and Peerless Pottery Sales (Peerless). Ceramica submitted a sample for inspection.
FACTS:
Ceramica manufactures ceramic products including toilets and other sanitary fixtures in Mexico. Its U.S. affiliate, Peerless, imports these products into the U.S. The merchandise subject to this request was entered on or about October 19, 2015. Ceramica states that the ceramic materials it uses to manufacture its sanitary fixtures are fired white bodies that are subject to routine tests of the absorption weight, meeting or exceeding the threshold of less than 0.5 percent water absorption by weight.
CBP Laboratories and Scientific Services Directorate (CBP LSSD) tested a sample. The sample consisted of an unassembled (white colored) glazed toilet, analyzing the “tank” and “bowl” portions. The sample is also representative of all of the ceramic sanitary products Cermica manufactures. Laboratory analysis indicated that the sample is a ceramic article.
ISSUE:
Are the toilets and other ceramic sanitary fixtures "of porcelain or china” of subheading 6910.10.00, HTSUS, or “Other” of subheading 6910.90.00, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.
The HTSTS subheadings under consideration are as follows:
6910 Ceramic sinks, washbasins, washbasin pedestals, baths,
bidets, water closet pans, flushing cisterns, urinals and similar
sanitary fixtures:
6910.10.00 Of porcelain or china
6910.90.00 Other
Additional U.S. Note 5(a) to Chapter 69, HTSUS, in pertinent part, states:
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….
Additional U.S. Note 5(a) to Chapter 69 applies to heading 6910. The testing method by which the CBP LSSD determines whether ceramic material is porcelain or china is described in great detail in Headquarters Ruling HQ 958647 (July 16, 1997). With regards to the translucency requirement, HQ 958647 described CBP’s testing method very clearly, explaining how its standard was developed.
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] 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.
Therefore, HQ 958647 requires that translucency of a ceramic article is determined by testing a 4 millimeter-thick sample with a 7 watt light source. Since HQ 958647 was available on Customs Rulings Online Search System (CROSS) at the time of entry, we do not agree with Ceramica’s assertion that the test for translucency of a ceramic article is in any way ambiguous or unclear.
In testing the aforementioned sample as described above, CBP LSSD, in pertinent part, determined that it is a ceramic article having the following properties:
WATER ABSORPTION percent (average of 2 analysts testing 5 pieces each) –
Tank – 0.56 =/- 0.06 (*)
Bowl – 0.99
(*) uncertainty at 95% confidence level
TRANSLUCENCY – Translucency was measured at less than 3 mm in thickness.
According to the LSSD report, the percentage of water absorbency for both the tank and bowl are greater than the “not more than .5%” allowed for porcelain and china in Additional U.S note 5(a), even with a margin of error of +/-.06%. CBP’s standard for translucency is at 4 mm thickness with a 7-watt light source. The tested sample was only translucent to 3 mm, thus, neither the tank nor bowl consists of porcelain or china.
Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 477 F.2d 1396, 1398 (C.C.P.A. 1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91 (1978). “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 477 F.2d at 1399.
Since CBP LSSD has determined that the instant toilet sample is made of a ceramic material other than porcelain or china, and Ceramica has brought no evidence to rebut CBPs presumption of correctness, the merchandise is classified in 6910.90.00, HTSUS.
Our decision is consistent with previous rulings classifying ceramic toilets and other sanitary fixtures under heading 6910, HTSUS. See New York Ruling Letter (NY) N005946, dated March 9, 2007 (classifying ceramic toilet tanks and bowls from Mexico), NY J85364, dated June 20, 2003 (classifying sinks and washbasins made from ceramic porcelain and non-porcelain) and N264545, dated June 2, 2015 (classifying porcelain ceramic one-piece toilet and bathroom sink).
HOLDING:
By application of GRI 1 and Additional U.S. Note 5(a) to Chapter 69, the ceramic toilets and sanitary fixtures at issue are classified in heading 6910, HTSUS, specifically in subheading 6910.90.00, HTSUS, which provides for: “Ceramic sinks, washbasins, washbasin pedestals, baths, bidets, water closet bowls, flush tanks, urinals and similar sanitary fixtures: Other.” The column one, general rate of duty is 5.7%,
Duty rates are provided for the importer’s convenience and are subject to change. The test of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division