[Federal Register Volume 61, Number 233 (Tuesday, December 3, 1996)]
[Notices]
[Pages 64192-64193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30664]


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DEPARTMENT OF THE TREASURY

Customs Service
[T.D. 96-80]


Crystallinity of Ceramic Floor and Wall Tile

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

ACTION: Final notice on testing of floor and wall tile for percent of 
crystallinity necessary to satisfy Harmonized Tariff Schedule of the 
United States criteria that a ``ceramic article'' be a shaped product 
``of crystalline or substantially crystalline structure.''

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SUMMARY: Customs has completed a review of the responses received as a 
result of our request for comments on the testing for the percent of 
crystallinity of certain articles of imported floor and wall tiles. 
These articles are classified for Customs purposes under subheadings 
covered by U.S. Note 1 to Chapter 69 of the Harmonized Tariff Schedule 
of the United States (HTSUS). There are many products imported under 
Chapter 69 that have vastly different physical requirements than floor 
and wall tiles. For this reason this study has been limited to the 
physical parameter of crystallinity of floor and wall tiles.

EFFECTIVE DATE: Any changes in Customs laboratory testing procedures 
will be effective regarding merchandise received for testing on or 
after December 3, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. Robert L. Zimmerman, Jr., Office 
of Laboratories & Scientific Services, (504) 589-6311.

SUPPLEMENTARY INFORMATION:

Background

    From time to time U.S. Customs Service employees take 
representative samples from importations for the purpose of verifying 
that the importation is properly being entered into the commerce of the 
United States under the correct subheading of the Harmonized Tariff 
Schedule of the United States (HTSUS) and other pertinent laws and 
regulations. Additional U.S. Note 1 to Chapter 69 of the HTSUS states:

    For the purposes of this chapter, a ``ceramic article is a 
shaped article having a glazed or unglazed body of crystalline or 
substantially crystalline structure, the body of which is composed 
essentially of inorganic nonmetallic substances and is formed and 
subsequently hardened by such heat treatment that the body, if 
reheated to pyrometric cone 020, would not become more dense, 
harder, or less porous, but does not include any glass articles''. 
[Emphasis added.]

As part of the Customs efforts to increase voluntary compliance with 
the law and regulations, inform the public, and involve the importing 
public in problem resolution, by a notice published in the Federal 
Register on September 6, 1995 (60 FR 46329), Customs stated that it 
wished to define the concept of ``substantially crystalline'' in 
scientific terms based on state-of-the-art ceramic technology. However, 
before making any changes, comments were invited on this issue.

Discussion of Comments

    The following discussion and conclusion applies only to floor and 
wall tile described in Chapter 69, HTSUS. As a result of the notice, 
Customs received six responses. The respondents have offered several 
issues which are discussed individually.
    Issue 1: The degree of crystallinity of a ceramic is not addressed 
in any of the major standards that govern the manufacture of ceramic 
articles.
    Response: This comment was made by five of the six respondents. The 
American Society for Testing and Materials (over 30 ASTM standards 
including C373, most found in Volume 15.02), the International 
Standards Organization (ISO standards 13006 and 10454.1 through 
10454.17), and the European Network (EN standards 87, 98-105, 121, 122, 
155, 159, 163, 176-178, 186-188, and 202) each have either accepted 
standards or draft standards for the production of ceramic floor and 
wall tile. Each standard writing body has a definition for a ceramic 
floor and wall tile, but none address the issue of crystallinity in 
their definition. According to one respondent, crystallinity is not an 
important factor to the industry. From all of the information gathered 
on this subject, Customs acknowledges that the degree of crystallinity 
is not an issue to the tile industry. The fact that the issue is not as 
critical to the industry as the other criteria stated in U.S. Note 1, 
e.g., fired to pyrometric cone 020, porosity, etc. may lead Customs to 
lessen the weight of the crystallinity criteria for floor and wall 
tile. However, in the absence of legislative change to the wording of 
U.S. Note 1 to Chapter 69 the issue must be addressed for Customs 
purposes.
    Issue 2: X-ray diffraction (XRD) is currently the technique of 
choice for determining the degree of crystallinity in these products.
    Response: Four of the respondents noted this fact. Three went on to 
discuss the significant cost, skill and effort the method demands. One 
respondent notes that XRD should be viewed as a qualitative test for 
the purpose of determining crystallinity. Customs acknowledges that, 
with one exception, all of the facts presented by the respondents 
regarding XRD are true. The exception is that, if done properly, XRD 
can give quantitative results. It is possible that, due to the 
discussion of Issues 1 and 3, only a type of screening technique is 
required.
    Issue 3: The purpose of the crystallinity criteria is to 
differentiate a ceramic tile from a glass article.
    Response: While only one respondent made note of the U.S. Tariff 
Commission Tariff Classification Study (``Schedule 5-Nonmetallic 
Minerals and Products,'' Nov. 15, 1960, pg 77-78) discussion of 
crystallinity as it applies to ceramic articles, the study is very 
important in determining the intent of the language of U.S. Note 1 to 
Chapter 69. The respondent states that the use of the concept of 
crystallinity is to differentiate a ceramic product from a glass 
product. From a technical standpoint, this is reasonable since glass 
articles are nearly completely amorphous, while ceramic goods normally 
contain some degree of crystallinity. Depending on the raw materials 
used to make the product and the manufacturing process used to engineer 
the physical qualities into the product that are necessary for its 
intended use, the degree of crystallinity may vary significantly. 
Furthermore, the HTSUS describes a different process for the 
manufacture of ceramics compared to the process of glass-making. This 
may be used to differentiate a ceramic article from a glass article for 
Customs purposes.
    Issue 4: Court ruling regarding ``substantially crystalline.''
    Response: One respondent refers to the Eastalco decision. In 
Eastalco Aluminum Co. V. United States, 13 CIT

[[Page 64193]]

864, 726 F. Supp. 1342 (1989), affirmed in 9 CAFC 16, 916 F. 2d 1568 
(1990), the Court considered whether certain carbon blocks were 
``ceramic articles'' for tariff classification purposes. The Court held 
that a low level of crystallinity (determined to be approximately 5%) 
was insufficient to meet the ``substantially crystalline'' requirement 
found in the tariff schedules. In responding to plaintiff's argument, 
the CIT stated, ``[w]hile fifty percent may not be the appropriate 
dividing line on the issue of what constitutes substantial 
crystallinity * * * the quantitative test has shown that a very low 
level of crystallinity is involved * * *.'' Hence, the Court did not 
reach the question of the appropriate dividing line for determining 
substantial crystallinity. In any event, for technical reasons, Customs 
considers this case to be largely inapplicable here. Graphite (a 
crystalline form of carbon) was a constituent material used to 
fabricate the blocks at issue in Eastalco. These blocks are normally 
used to line ovens and furnaces that must handle extremely high 
temperatures. Floor and wall tiles have a vastly different construction 
and application; they will, therefore, have quite different physical 
characteristics. In sum, it is logical that the percent of 
crystallinity needed to satisfy the subjective term ``substantially 
crystalline'' may be different for products that are vastly different.
    Issue 5: Professional opinion of percent of crystallinity.
    Response: All but one of the respondents who are scientists/
engineers state that, in their professional opinion, only a minimal 
level of crystallinity should be required for a floor or wall tile to 
be considered ``substantially crystalline.'' One scientist did not 
offer an opinion on a minimum level of crystallinity. One of the 
ceramic engineers introduces a concept that the crystalline content of 
nearly all, if not all glass, ``never exceeds a few percent (less than 
5%).'' Customs finds these opinions to be significant.

Conclusion

    After careful consideration of all of the comments received 
concerning the issues noted above, as of the effective date of this 
notice in the Federal Register, in making decisions on tariff 
classification Customs will consider the term ``crystalline or 
substantially crystalline'' as used in U.S. Note 1 to Chapter 69, as it 
pertains to floor and wall tile, to be satisfied for articles having a 
level of crystallinity that is clearly discernable by x-ray diffraction 
or other analytical methodology that is generally accepted by the 
scientific community. Normally, a qualitative analysis, using the XRD 
technique, that indicates some degree of crystallinity exists in the 
article would be sufficient to verify that the floor or wall tile 
article has a sufficient crystalline nature to satisfy the criteria 
``crystalline or substantially crystalline structure'' for Customs 
purposes.

    Dated: November 26, 1996.
George D. Heavey,
Director, Laboratories and Scientific Services.
[FR Doc. 96-30664 Filed 12-2-96; 8:45 am]
BILLING CODE 4820-02-P