Receipt of Domestic Interested Party Petition Concerning Tariff Classification of Sanitary Ware

DEPARTMENT OF THE TREASURY

Customs Service

Receipt of Domestic Interested Party Petition Concerning Tariff

Classification of Sanitary Ware

AGENCY: U.S. Customs Service, Department of the Treasury.

ACTION: Notice of receipt of domestic interested party petition;

solicitation of comments.

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SUMMARY: Customs has received a petition submitted on behalf of a

domestic interested party concerning the tariff classification of

ceramic sanitary ware made in Mexico. The subject sanitary ware is

provided for under heading 6910, Harmonized Tariff Schedule of the

United States (HTSUS), as ceramic sinks, washbasins, washbasin

pedestals, baths, bidets, water closet bowls, flush tanks, urinals and

similar sanitary fixtures. Petitioner believes sanitary ware is

classifiable under subheading 6910.10, HTSUS, which provides for such

articles of porcelain or china, and challenges Customs classification

under subheading 6910.90, which provides for sanitary ware, other than

that of porcelain, china or china ware. Petitioner claims that tariff

enumerated methodologies for determining whether a particular ceramic

is porcelain, china or china ware are flawed. In addition, Petitioner

claims that Customs implementation of the methodologies is flawed. The

document invites comments regarding the correctness of Customs

classification as well as the methodologies used. Before taking any

action on the petition, consideration will be given to any written

comments received in response to this notice.

DATES: Comments must be received on or before May 7, 1996.

ADDRESSES: Comments (preferably in triplicate) may be submitted to the

U.S. Customs Service, Office of Regulations and Rulings, Regulations

Branch, Franklin Court, 1301 Constitution Avenue, N.W., Washington,

D.C. 20229. Comments may be viewed at the Office of Regulations and

Rulings, Franklin Court, 1099 14th Street, N.W., Suite 4000,

Washington, D.C.

[[Page 9522]]

FOR FURTHER INFORMATION CONTACT: Mary Beth McLoughlin, Tariff

Classification and Appeals Division, (202) 482-7030.

SUPPLEMENTARY INFORMATION:

Background

Pursuant to section 516, Tariff Act of 1930, as amended (19 U.S.C.

1516), and Part 175, Customs Regulations (19 CFR Part 175), Customs has

received a petition submitted on behalf of a domestic interested party

concerning the tariff classification of ceramic sanitary ware made in

Mexico. Chapter 69, HTSUS, provides for ceramic products. Heading 6910,

HTSUS, of Chapter 69, provides:

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--6.9%, 5.7% (MX)

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--6.9% Free (MX)

The subject sanitary ware is classifiable under heading 6910.

Petitioner believes sanitary ware is classifiable under subheading

6910.10, HTSUS, which provides for such articles of porcelain or china,

and challenges Customs classification under subheading 6910.90, which

provides for sanitary ware, other than that of porcelain, china or

china ware. Petitioner claims that tariff enumerated methodologies for

determining whether a particular ceramic is porcelain, china or china

ware are flawed. In addition, Petitioner claims that Customs'

implementation of the methodologies is flawed.

According to petitioner, prior to the January 1994 implementation

of the North American Free Trade Agreement (NAFTA), Mexican produced

vitreous china sanitary ware was classified under subheading 6910.10

with a 7.2% rate of duty. Under NAFTA, duty rates for subheading

6910.10 are incrementally reduced to free over a 10-year period.

Petitioner asserts that early in 1994, Customs reclassified Mexican

produced vitreous china sanitary ware as sanitary ware made of material

other than porcelain or china under subheading 6910.90. Under NAFTA,

duty rates for subheading 6910.90 were reduced to free at NAFTA's

implementation. Petitioner challenges Customs reclassification of

Mexican ceramic sanitary ware, claiming significant amounts of ceramic

sanitary ware, in particular water closet bowls, are made of china.

Customs Position

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. Additional U.S. Note 5(a) to Chapter 69

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.

The tariff definition of porcelain, china and chinaware provides

physical characteristics which, under certain circumstances, indicate

that an article is porcelain, china and chinaware. Those

characteristics include the article's degree of whiteness (unless the

article is artificially colored) and degree of vitrification. An

article's vitrification is manifested by both the water absorption and

translucency specifications stated in the tariff definition for

porcelain, china and chinaware.

Porcelain consists essentially of kaolinic clays and smaller

amounts of quartz and/or feldspar. Because the clay and additives are

extremely pure, the finished porcelain body is close to a true white

color, unless colored. Whiteness, as a porcelain, china and chinaware

characteristic, was addressed in U.S. vs. Twin Wintons, 535 F.2d 636

(CCPA 1976) rev'd. 395 F.Supp 1397 (1975) [Twin Wintons]. The court

found, based on the evidence presented, that whiteness is principally a

subjective function of the potter's intent manifested through

ingredient control, and therefore not a determinative characteristic in

and of itself of an article's porcelain, china and chinaware nature.

However, subsequent to the decision in Twin Wintons, Customs has used

the Munsell Color System scientific method to measure the ``whiteness''

of ceramic ware when determining whether an article is made of

porcelain, china and chinaware.

The Munsell Color System is a universally accepted system used to

characterize color in terms of hue, chroma and value (lightness) using

a combination number/lettering system. The Munsell system is

illustrated by a collection of 1500 color chips in the Munsell Book of

Color. It requires that an object be viewed under a Macbeth lamp which

produces an artificial light of known wave length simulating northern

sky daylight. The color viewed is then compared with standardized color

chips produced and sold by Munsell. The chips are of varying degrees of

whiteness. Customs understands that ceramic 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) will be, for the purpose of testing sanitary ware,

considered white.

The amount of water a particular article absorbs is a manifestation

of its vitrification. As the degree of vitrification increases during

the firing process, the amount of water the finished product will be

able to absorb will decrease by the same degree and vice versa. The

method for the measurement of water absorption as provided for in

Chapter 69, Additional U.S. Note 5(d), is the American Standard Testing

Method designated C373 (except that test specimens may have a minimum

weight of 10 g, and may have one large surface glazed). Samples

absorbing 0.5% and less of their weight in water are sufficiently

vitrified to meet both the tariff and industry definitions of

porcelain, china and chinaware.

Translucency is the final specification provided by the tariff.

Translucency, as in the case of water absorption, is a specification

which manifests the characteristic ``vitrification''. As the degree of

vitrification increases, the subject article's translucency increases.

With respect to Chapter 69, Customs believes translucency is present as

a specification to define the degree of vitrification and not as a

porcelain, china and chinaware characteristic in and of itself.

Therefore, Customs believes that bodies, whatever their form (e.g.:

sanitary ware, vase, etc.), composed of the same base materials and

vitrified during firing for the same amount of time will exhibit

essentially the same amount of translucency.

In Twin Wintons, the examination of the subject article, a

decanter, consisted of the judges darkening a room, placing a 7 watt

penlight into the decanter and then visually examining the decanter to

determine whether light shone through. The court tested the product for

translucency without adjustment to a specific thickness. In addition,

the court stated that there was no evidence that any part of the

decanter was ``very thin''. Customs believes that this statement

indicates the court's belief that the thickness of the decanter was

within or above the ``thickness of

[[Page 9523]]

several millimeters'' requirement of the tariff porcelain, china and

chinaware definition.

The measurable translucency of an article is directly affected by

its thickness. Because translucent objects only partially transmit

light, translucent materials become opaque at certain thicknesses.

While the various articles of headings 6909 through 6914 may have

virtually identical bodies, their thickness varies. Therefore, Customs

believes the direction of Additional U.S. Note 5(a), ``translucent at

thicknesses of several millimeters'', requires all ceramic articles it

encompasses to be tested at a universal thickness. This thickness may

or may not be the actual thickness of the product.

In the absence of a quantitative thickness, the Customs Laboratory

performed an exhaustive search of industry standards. That search

produced what Customs understands to be the only available industry

standard indicating a thickness for testing translucency: the British

Standard 5416 for porcelain chinaware. The standard requires an average

water absorption of less than 0.2% by weight; however, depending on

sample size (number samples tested), a small number of samples may show

a water absorption rate of greater than 0.4%. If water absorption is

met, translucency is tested by taking a 2 mm thick piece of the article

and determining if 75% of the light directed incident upon it from a

light source capable of emitting white light of color temperature of

3400 K (a special photometric lamp) is viewable. As the water

absorption specification is provided in the porcelain, china and

chinaware tariff definition, Customs believes that the sample thickness

requirement of the test should be applied to determine whether a piece

of ceramic sanitary ware will meet the translucency requirement of the

porcelain, china and chinaware tariff definition.

Petitioner's Position

In contrast, petitioner states that while Additional U.S. Note 5(a)

may accurately determine whether ceramic dinnerware or decorative

articles are made of porcelain, china and chinaware, the specifications

provided in the note are troublesome when applied to ceramic sanitary

ware. Instead, petitioner suggests that the specifications for sanitary

ware provided by the American National Standards Institute (ANSI) code

should be applied to determine whether a ceramic sanitary ware article

is made of china.

The ANSI has been adopted by the plumbing industry. It provides

standards which govern the material composition and characteristics of

ceramic sanitary ware. The ANSI code divides ceramic sanitary ware into

2 categories: ``Vitreous China Plumbing Fixtures'' and ``Non-Vitreous

Ceramic Plumbing Fixtures''. Under the ANSI code, the difference

between vitreous and non-vitreous ceramic products is determined by the

water absorption value of the products. Vitreous china fixtures have an

absorption value of .5% or less, while non-vitreous ceramics have an

absorption value of .6% and above. According to petitioner, water

closet bowls, as a condition for use and sale in the U.S., must meet

the ANSI vitreous china standard.

Petitioner believes that ceramic sanitary ware meeting the ANSI

vitreous china standard ought to be classified under subheading 6910.10

and ceramic sanitary ware which meets the non-vitreous china standard

ought to be classified under subheading 6910.90.00, HTSUS.

Comments

Pursuant to section 175.21(a), Customs Regulations (19 CFR

175.21(a)), before making a determination on this matter, Customs

invites written comments from interested parties on this issue. The

petition of the domestic interested party, as well as all comments

received in response to this notice, will be available for public

inspection in accordance with the Freedom of Information Act (5 U.S.C.

552), section 1.4, Treasury Department Regulations (31 CFR 1.4), and

section 103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular

business days between the hours of 9:00 a.m. and 4:30 p.m. at the

Regulations Branch, U.S. Customs Service, Office of Regulations and

Rulings, Franklin Court, 1099 14th Street, N.W., Suite 4000,

Washington, D.C.

Authority

This notice is published in accordance with section 175.21(a),

Customs Regulations [19 CFR 175.21(a)].

George J. Weise,

Commissioner of Customs.

Approved: February 7, 1996.

Dennis M. O'Connell,

Acting Deputy Assistant Secretary of the Treasury.

[FR Doc. 96-5682 Filed 3-6-96; 8:45 am]

BILLING CODE 4820-02-P