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HQ 957520




June 16, 1997

RR:TC:MM 957520 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6910.10.00/6910.90.00

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% 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% not porcelain

5-94-30285-001
Not translucent even in very thin pieces
0.10% 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% 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

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