CLA-2: OT: RR: TCM: H278371 MAB
Port Director, Port of Norfolk
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
Attn: Patrick Lide, Import Specialist
RE: Application for Further Review of Protest No. 1401-16-100042; ceramic planters
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 1401-16-100042, timely filed by FedEx Trade Networks on May 10, 2016, on behalf of BFG Supply Co, LLC (Protestant). The AFR concerns the tariff classification of ceramic planters under the Harmonized Tariff Schedule of the United States (HTSUS). For this decision, U.S. Customs and Border Protection (CBP) has taken into consideration additional information provided by FedEx and Protestant’s counsel via email and two (2) samples sent to this office.
FACTS:
Protestant filed this AFR in regard to two (2) entries of ceramic planters at the Port of Norfolk on May 22 and June 5, 2015. The entries were liquidated on April 1 and April 15, 2016, respectively. The subject merchandise consists of an assortment of ceramic planters that are designed for both indoor and outdoor use (e.g., holding decorative items, planting and growing flowers or plants, etc.). The planters come in a variety of shapes, sizes, colors, and designs. According to the AFR attachment provided by Protestant which consists of black and white photocopies of pages from its catalog, there are seven (7) assortments of ceramic planters at issue, all designed by Michael Carr Designs™. However, upon our review of the commercial invoices provided for Protestant’s first entry, we discovered line items for 23 assortments of Michael Carr Designs™ ceramic planters and three (3) that do not identify the designer. In Protestant’s second entry, there are 15 line items that describe the merchandise simply as “ceramic planters samples” without providing the identification of the designer or additional information (e.g., piece count, color, size, etc.).
On November 15, 2016, our office requested that Protestant provide us with one (1) sample from each item number listed on its commercial invoices. In response, Protestant sent us two (2) samples. One (1) sample has a sticker attached to its interior describing it as “MCarr 5.1” Self Watering Scallop Pot Ocean Blue.” The body of this sample is unglazed and reddish-brown in color. The top rim has a blue-colored glaze. This sample does not match any of the descriptions of entered merchandise on the commercial invoices. The other sample does not have a sticker attached to it. It is approximately the same size as the first sample but round in shape with a similar blue-colored glaze on both its body and rim. Without further identifying information, we are unable to match it to any of the item numbers as listed on the commercial invoices. Protestant did not provide additional information about the samples. Likewise, Protestant did not provide information in regard to the composition and features of the instant merchandise or its manufacturing process.
Protestant entered the subject merchandise under subheading 6913.90.5000, HTSUS, which provides for: “Statuettes and other ornamental ceramic articles: Other: Other: Other.” CBP liquidated the goods under subheading 6913.90.5000, HTSUS. In its AFR, Protestant now asserts that the ceramic planters are more properly classified under 6913.90.3000, HTSUS, which provides for: “Statuettes and other ornamental ceramic articles: Other: Other: Of earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze, and mottled, streaked or solidly colored brown to black with metallic oxide or salt.” As noted above, to substantiate its claim, Protestant provides black and white photocopies of pages from its catalog describing seven (7) assortments of the entered merchandise and two samples.
ISSUE:
Whether the ceramic planters are classified under subheading 6913.90.30, HTSUS, as “earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze, and mottled, streaked or solidly colored brown to black with metallic oxide or salt,” or under subheading 6913.90.50, HTSUS, as “Other” ceramic planters.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §1514(c)(3)(2006)).
Further review will be accorded to a party filing an AFR that meets the requirements of section 174.25 and at least one of the criteria in section 174.24. The criteria for an AFR set forth in the applicable regulations, section 174.24 (19 C.F.R. §174.24), provide:
Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed:
Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.
Protestant argues that further review of its protest is properly warranted pursuant to 19 C.F.R. § 174.24(a), as CBP’s decision is inconsistent a ruling of the Commissioner of Customs or his designee. Specifically, Protestant asserts that the Port’s liquidation of the subject entries contradicts CBP’s approval of a Post Summary Correction (PSC) of a previous entry at the Port of Chicago.
Upon our review of the PSC at issue, we do not find any evidence that the decision was based upon an actual examination of the merchandise. Instead, it appears that the PSC was blindly approved without such examination. We also find that the merchandise as described in the commercial invoices in regard to the PSC is not identical to the merchandise at issue in the instant matter. Thus, Protestant does not meet the criteria in section 174.24(a) for further review. However, we find that Protestant meets the criteria in section 174.24(b) in that the instant case involves questions of fact that have not been ruled upon previously. Therefore, further review of Protest No. 1401-16-100042 is warranted.
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 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2015 HTSUS provisions under consideration are as follows:
6913 Statuettes and other ornamental ceramic articles:
6913.90 Other:
Other:
6913.90.30 Of earthenware, whether or not decorated, having
a reddish-colored body and a lustrous glaze, and
mottled, streaked or solidly colored brown to black
with metallic oxide or salt
6913.90.50 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN 69.13 states the following, in relevant part:
This heading covers a wide range of ceramic articles of the type designed essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments (e.g., garden ornaments).
Additional U.S. Note 5(c) to Chapter 6, HTSUS, provides, in relevant part, as follows:
For the purposes of headings 6909 through 6914…the term
“earthenware” embraces ceramic ware, whether or not glazed or
decorated, having a fired body which contains clay as an essential
ingredient, and will absorb more than 3 percent of its weight with
water.
There is no dispute at the heading level that the subject merchandise is described by the terms of heading 6913, HTSUS, or by the terms of subheading 6913.90, HTSUS. See EN 69.13. Instead, the dispute is solely at the 8-digit level and whether the subject merchandise is “Of earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze, and mottled, streaked or solidly colored brown to black with metallic oxide or salt” or “Other.”
By statute, CBP decisions regarding the classification of imported merchandise are presumed correct and the burden is on the importer to prove otherwise. See 28 U.S.C. §2639(a)(1). See also Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352 (Fed. Cir. 2002) (“a classification of merchandise by Customs is presumed to be correct . . . [so] the burden of proof is upon the party challenging the classification.”). (Citations omitted) The presumption of correctness, however, “does not add evidentiary weight; it simply places the burden of proof on the challenger.” Anhydrides & Chems., Inc. v. United States, 130 F.3d 1481, 1486 (Fed. Cir. 1997).
In support of its position that it has overcome the presumption of correctness, Protestant offers black and white photocopies of pages from its catalog describing seven (7) collections or assortments of the entered merchandise and two (2) samples.
As noted above, only five (5) of the seven (7) assortments wherein information was provided match descriptions on the commercial invoices. Moreover, we counted a total of 41 line items of merchandise that do not match the descriptions of ceramic planters as provided on Protestant’s catalog pages. Although the catalog pages include the names of the collections or assortments, item numbers, the identity of the manufacturer, the manufacturer’s suggested retail price (MSRP), available colors, etc.; they do not include information that is pertinent to the characteristics needed to classify the ceramic planters from these particular collections or assortments under subheading 6913.90.30, HTSUS. Moreover, since subheading 6913.90.30, HTSUS, requires the instant merchandise to be “…mottled, streaked or solidly colored brown to black…”, color and finish are at issue. At the very least, Protestant should have included information in regard to all of its invoiced ceramic planters in the form of color copies of its catalog pages, actual color photographs, or an internet link to its website and/or its manufacturers’ website(s) with the necessary color pictures and information.
We note, too, that Protestant did not comply with our request to provide a sample from each item number listed on the commercial invoices. Instead, it provided only two (2) samples. This made it impossible for us to conduct a proper classification analysis in regard to all of the invoiced merchandise at issue in this matter. Furthermore, with the exception of providing a label for one (1) of the samples that contained some facts (but did not match any item numbers listed on the commercial invoices), Protestant provided no additional information.
Although Protestant asserts the instant merchandise should be properly classified under subheading 6913.90.30, HTSUS, it did not offer information or evidence (e.g., testing) that the merchandise meets the definition of “earthenware” as set forth by Additional U.S. Note 5(c) to Chapter 6, HTSUS, i.e., that clay is an essential ingredient and will absorb more than 3 percent of its weight with water. Similarly, Protestant did not provide any technical information about its luster, glaze, colorants, materials, salting mixtures, etc., or manufacturing process (e.g., kiln firing and temperature, etc.) to prove or even suggest that all of its imported ceramic planters are of earthenware, having a lustrous glaze, mottled, streaked or solidly colored brown to black with metallic oxide or salt.
A prima facie case is a case based on evidence, i.e., prima facie evidence, which is sufficient to establish a fact unless rebutted. The term “prima facie evidence” is defined as, “evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.” Black’s Law Dictionary, 638 - 39 (9th ed. 2009). In the context of the presumption of correctness of CBP’s decisions under 28 U.S.C. § 2639(a)(1), a prima facie case means the evidence presented by an importer derived from an independent source or test that is sufficient to sustain the importer’s claimed classification. Because Protestant failed to offer any evidence as noted above or independent laboratory testing of the ceramic planters upon which a prima facie case could be made, we determine that Protestant has failed to establish a prima facie case and overcome the presumption of correctness of CBP’s determination that the imported merchandise is classified under 6913.90.50, HTSUS, which provides for: “Statuettes and other ornamental ceramic articles: Other: Other: Other.”
HOLDING:
By application of GRI 1, the subject ceramic planters are provided for in subheading 6913.90.5000, HTSUS, as “Statuettes and other ornamental ceramic articles: Other: Other: Other.” The general column one rate of duty is 6% ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook you are to mail this decision together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of International Trade, 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 methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc: Petrina Evans, Director, Consumer Products & Mass Merchandising Center of Excellence
Robert Lynch, Supervisory Import Specialist, Consumer Products & Mass Merchandising
Center for Excellence