CLA-2 RR:CR:GC 963318 AML
TARIFF NOS.: 6912.00.10; 6912.00.48
Mr. Chris Garcia
Kuehne & Nagel, Inc.
8870 Boggy Creek Road, #100
Orlando, Florida 32824
RE: Kamado barbecue pot; NY 804943 revoked
Dear Mr. Garcia:
On January 5, 1995, you were issued New York Ruling (NY) 804943, in response to your letter of December 9, 1994, on behalf of The Outdoor Gourmet DBA The Ultimate Cooker, regarding the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a kamado barbecue pot. A sample was submitted. We have reconsidered NY 804943 and now believe that it is incorrect. This ruling sets forth the correct classification and the analysis therefor.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY 804943 was published on January 5, 2000, in the CUSTOMS BULLETIN, Volume 34, Number 1. Two comments were received in response to this notice.
FACTS:
The merchandise is described as an “… earthenware pot, known as the ‘Imperial Kamado’, which is used as a barbecue type utensil.”
ISSUE:
Whether kamado barbecue pot is classifiable as ceramic tableware and kitchenware of coarse-grained earthenware in subheading 6912.00.10, HTSUS, or other ceramic tableware and kitchenware in subheading 6912.00.48, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs), 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 HTSUS heading and subheadings under consideration are as follows:
6912 Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china:
Tableware and kitchenware:
6912.00.10 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
Other:
Other:
Other:
6912.00.44 Mugs and other steins
6912.00.48 Other
In NY 804943, Customs stated that it had been previously ruled that for an article to be classified as coarse-grained earthenware, it must be shown that the clay used to produce the article was not washed, ground, or otherwise beneficiated before production, and that the clay was used just as taken from the ground. The position taken in NY 804943 was based upon the distinction between coarse-grained and fine-grained earthenware (except for that meeting the stated criteria) and stoneware which existed in the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS. See items 533.11 and 533.15, TSUS, and headnotes 2(h) and (i), Schedule 5, Part 2, TSUS, in the latter of which the terms “coarse-grained” and “fine-grained” were defined; see also Import Sales, Inc. v. United States, 65 Cust. Ct. 168, C.D. 4073 (1970), applying the above TSUS definitions to certain ceramic wares.
In Amity Leather Co. v. United States, 20 CIT 1049, 939 F. Supp. 891 (1996), the Court had before it a tariff provision in which a prior statutory definition from the TSUS was not included in the HTSUS. The Court stated:
... [W]here the statutory language of the HTSUS is clear, resort to the TSUS is not necessary ...; if the HTSUS term is clear, e.g., the common and commercial meaning of a term are the same and alternate meanings are not apparent from the context of the statute, the existence of a prior statutory definition in the TSUS does not create an ambiguity in the HTSUS. Here, the provision in the HTSUS leads to a clear outcome through application of the term’s plain, ordinary, and popular meaning, which is consistent with its commercial meaning.
Third, if anything is to be gleaned about legislative intent from the old TSUS definition, it is that omission of this long-standing definition upon conversion to the HTSUS was deliberate. ... The omission of a long-standing statutory definition represents a significant change in statutory language.
20 CIT at 1054; cited and quoted for this proposition by American Bayridge Corp. v. United States, 35 F. Supp. 2d 942 (CIT 1999), and H.I.M./Fathom, Inc. v. United States, 981 F. Supp. 610 (CIT 1997).
Accordingly, it is now the position of Customs that the TSUS definition of the term “coarse-grained” is no longer determinative of the meaning of that term in heading 6912, HTSUS. The term must be interpreted in accordance with its common and commercial meaning for purposes of classification under the HTSUS, and that meaning is controlling. The Court of Appeals for the Federal Circuit has stated that “[t]o assist it in ascertaining the common meaning of a tariff term, the court may rely upon its own understanding of the terms used, and it may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.” (Brookside Veneers, Ltd. v. United States, 6 Fed. Cir. (T) 121, 125, 847 F.2d 786 (1988). See also 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).)
"Coarse-grained" is defined in Webster’s Third New International Dictionary of the English Language (1993), at 433, as "1: of a coarse grain or texture; esp. of wood: having wide annual rings, large wood elements, or both 2: lacking in culture: CRUDE, UNREFINED". The Random House Dictionary of the English Language (1983), at 282, defines "coarse-grained" similarly, as "1. having a coarse texture or grain. 2. indelicate; crude; gross; a coarse-grained person with vulgar tastes and manners." The Oxford English Dictionary (The Compact Edition (1987)) does not separately define "coarse-grained", but defines "coarse" (at 554) as "1. Ordinary, common, mean (in the depreciatory sense of these epithets); base; of inferior quality or value; of little account" and "2. Wanting in fineness, smoothness, or delicacy of texture, granulation, or structure; consisting of comparatively large parts or particles; of such as are too large for beauty. Opposed to fine." "Grain" (at 339-340) is defined first in the context of seeds or fruits and, in the likely applications in this case, as "7. A small, hard, usually roundish particle (e.g., of sand, gold, salt, pepper)" ... "12. A roughness of surface, giving the appearance of grains (sense 7) or small roundish bodies side by side. ..." "14. The texture of any substance; the arrangement and size of its constituent particles, appearing in an exposed surface or in a cross-cut or fracture: ... c. In stone, metal, etc. ... 1832 G. R. Porter Porcelain & Gl. I. II The grain in both the Chinese and Saxon pieces appeared compact, smooth, and shining; while that of the French ware was less close, and its grain resembled sugar."
The Chemistry and Physics of Clays and other Ceramic Materials, Alfred B. Searle and Rex W. Grimshaw (3rd Ed. 1959), states (at 333):
The substance of which bricks, tiles, pottery, porcelain and other ceramic articles are composed is known as the body and its composition and treatment require careful consideration. Different kinds of articles require to be made from different raw materials….
This text makes the following distinction is made between coarse and fine earthenware (at 333-334):
Coarse earthenware or Brown-ware (including Terra-cotta) is made of a crude clay which may contain 50 per cent or more of sand or chalk and up to about 10 per cent of iron compounds together with small amounts of accessory minerals. Some clays can be used without any preliminary purification but others need to be washed and any excess or sand or gravel removed. For common bricks and roofing tiles, little blending is required with some clays but others must have their objectionable properties modified by the addition of sand, chalk or other clays. For hollow-ware (bread-pans, wash-basins, flower-pots, etc.), a carefully selected clay or blend of clays is used, including one or more which have previously been washed as described above. The crude clays used for the manufacture of coarse earthenware generally contain sufficient fluxing agents (alkali and similar impurities) to produce fired ware which will ring when struck and will be durable under ordinary conditions of use.
Many articles of coarse earthenware are unglazed but for certain purposes, a coating is applied either to the exterior or the interior of the articles (or to both) as may be required.
Fine earthenware, when fired, has a white or almost white body and is made of clays which are white when burned. The clays for the best, fine, white earthenware are usually china clay and ball clay, the former for the texture and translucency it imparts and the latter to give strength to the unfired shapes. Flint is added to reduce the shrinkage and to increase the porosity and the silica content. A flux, such as china stone or feldspar is also introduced, which forms a glass in the fired body and therefore imparts strength, density and the power to ring when struck. In recent years talc, pyrophyllite and various other silicates have been included in earthenware bodies used for glazed wall- and floor-tiles.
In a section on the “particle size of ceramic materials”, this text states “[f]or fine earthenware, stoneware and china ware the whole of the materials should pass completely through a No. 120-mesh sieve [.124 mm] and a large proportion should pass through a No. 200-mesh sieve [.07 mm]” (at p. 377). (Conversion of sieve size to millimeter size of particles is based on Table VII, page 380, of The Physics of Clays and other Ceramic Materials, supra.)
The article Ceramics, General Survey, in Ullmann’s Encyclopedia of Industrial Chemistry (5th ed. 1986), Vol. A6, 3, defines earthenware as "glazed or unglazed nonvitreous (porous) clay-based ceramic ware [divided] into four categories: (1) natural clay body, (2) refined clay body, (3) talc body, and (4) semivitreous trixial body….” This article also states (at 3-4), that "[b]odies ... can be classified as being either fine (having particles not larger than ca 0.2 mm) or coarse (having the largest particle ca 8 mm).”
From the foregoing authorities, we conclude that the common meaning of “fine-grained” and "coarse-grained", as used in describing earthenware, may refer to the size of the particles of which an article is composed or the texture. Even in the latter case (i.e., if the common meaning of the terms refers to texture), “texture” itself has common meanings that may refer to the size of the particles of which an article is composed or the “feel” (i.e., rough or smooth) of an article. See Webster’s, supra, at 2366, “texture … 3 a: the size and organization of small constituent parts of a body or substance … b: the visual or tactile surface characteristics and appearance of something … c: the characteristic consistency esp. of a liquid or semiliquid … 4 a: the smaller features of a rock that depend on the size, shape, arrangement, and distribution of the component minerals …”; Random House, supra, at 1469, “texture … 2. the characteristic physical structure given to a material, an object, etc., by the size arrangement and proportions of its parts …”; Oxford English Dictionary, supra, at 3274, “Texture … 4. … [t]he constitution, structure, or substance of anything with regard to its constituents or formative elements .…”
Both the Ullmann’s article and The Chemistry and Physics of Clays and other Ceramic Materials text indicate that “fine-grained” and “coarse-grained” refer to the size of the particles in the material of which the article is composed, and not the texture of its surface. The General ENs for Chapter 69, HTSUS, support this conclusion (see General EN, (B)(i) “Preparation of the paste (or body)”). See also Additional U.S. Notes 1, 5(a), 5(b), 5(c), and 5(d) Chapter 69, HTSUS, each defining ceramic articles in terms of the “body”, which is described in terms of the substances or materials of which it is composed, not its surface (e.g., Additional U.S. Note 5(c), defining "earthenware" as ceramic ware "having a fired body which contains clay as an essential ingredient, and will absorb more than 3 percent of its weight of water").
We conclude that “coarse-grained” and “fine-grained”, as those terms are used in heading 6912, HTSUS, refer to the size of the particles in the material of which an article is composed (the “body”). Of the authorities referred to above, only the technical sources provide specific size criteria for course and fine-grained earthenware. In this regard, we note that “… it is well settled that in instances where the common meaning of a technical term is in issue … reliance should not be confined to general lexicons, but technical dictionaries may be consulted” (Kyocera International, Inc. v. United States, 2 CIT 91, 94, 527 F. Supp. 337 (1981)). Furthermore, “… in technical fields the courts usually place greater reliance on technical publications that define the item more specifically to the actual circumstances of its use than on general purpose dictionaries in reaching a decision” (S.I. Stud, Inc. v. United States, 17 CIT 661, 669, fn. 6 (1993)).
The authorities of which Customs is aware that distinguish between coarse-grained and fine-grained earthenware with specific size criteria are referred to above. The Chemistry and Physics of Clays and other Ceramic Materials text indicates that the particles in the body of fine-grained earthenware (as well as stoneware and chinaware) should be no larger than .124 mm. The Ullmann’s article states that the particles in the body (the article refers to bodies for traditional ceramics, including earthenware) should be no larger than “ca 0.2 mm”. The Ullmann’s article is the most recent information of which we are aware and reflects the definition of coarse-grained and fine-grained earthenware nearest to the time of enactment of the HTSUS (see, e.g., United States v. O. Brager-Larsen, 36 CCPA 1, 3-4 C.A.D. 338 (1948)). Accordingly, we adopt the particle size criterion in the Ullmann’s article. Tableware and kitchenware of earthenware made from a body in which the particles are larger than 0.2 mm is coarse-grained stoneware, classifiable in subheading 6912.00.10, HTSUS. Tableware and kitchenware of earthenware made from a body in which the particles are no larger than 0.2 mm is “other” than coarse-grained earthenware of subheading 6912.00.10, classifiable in the “other” provision under “tableware and kitchenware”, in subheading 6912.00.20 through 6912.00.48, HTSUS. (This does not include tableware and kitchenware of fine-grained earthenware 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, specially provided for in subheading 6912.00.10, HTSUS.)
To determine whether an article classifiable in heading 6912, HTSUS, is of coarse-grained or fine-grained earthenware, the composition of the body from which the article is made must be known. Pursuant to Title VI (Customs Modernization), section 637 of the North American Free Trade Agreement Implementation Act (Public Law 103-182, 107 Stat. 2057, 2200), an importer of record is responsible for using reasonable care to enter, classify and value imported merchandise, and provide any other information necessary to enable Customs to properly assess duties, collect accurate statistics and determine whether any other applicable legal requirement is met. See the legislative history to Public Law 103-182, § 637 (H. Report 103-361, Part I, 103d Cong., 1st Sess., 1134 (1993), printed at 1993 U.S.C.C.A.N. 2552, 2684). This Report states:
… In the view of the Committee, it is essential that this “shared responsibility” [between Customs and the trade community] assure that, at a minimum, “reasonable care” is used in discharging those activities for which the importer has responsibility. These include, but are not limited to: furnishing of information sufficient to allow Customs to fix the final classification and appraisal of merchandise…. [1993 U.S.C.C.A.N. 2686]
Therefore, upon request by Customs in regard to an imported article initially classified by the importer as coarse-grained or fine-grained earthenware in heading 6912, HTSUS, the importer is responsible for furnishing information sufficient to fix the proper final classification of the article. Such information must establish the size of the particles of the body from which the imported article was made (e.g., a satisfactory independent laboratory report). If the importer does not provide satisfactory information upon such a request by Customs, the article will be assumed to be tableware or kitchenware of other than coarse-grained earthenware (see Ullmann’s, supra, at p. 4, Tables 1 and 2, indicating that most kitchenware and tableware products are “[f]ine ceramic products”).
HOLDING:
The kamado barbecue pot is classifiable as tableware and kitchenware of coarse-grained earthenware in subheading 6910.00.10, HTSUS, if the particles in the body from which it was made are larger than 0.2 mm; if the particles in the body from which it was made are no larger than 0.2 mm, the kamado barbecue pot is classifiable as other ceramic tableware and kitchenware in subheading 6912.00.48, HTSUS.
EFFECT ON OTHER RULINGS:
HQ 804943 dated January 5, 1995, is REVOKED.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
John Durant, Director
Commercial Rulings Division