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HQ 958647

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June 16, 1997

RR:TC:MM 958647 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6910.90

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

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See also:

• Tariff No.: 6910.10.00 - Porcelain or china ceramic sinks, washbasins, baths, bidets, water closet bowls, urinals & siml. sanitary fixtures
• Tariff No.: 6910.90.00 - Ceramic (o/than porcelain or china) sinks, washbasins, baths, bidets, water closet bowls, urinals & siml. sanitary fixtures