[Federal Register Volume 61, Number 47 (Friday, March 8, 1996)]
[Notices]
[Pages 9521-9523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5682]
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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