CLA-2 OT: RR: TCM: H277471 MAB
Port Director, Port of Houston
U.S. Customs and Border Protection
2323 S. Shepard #1200
Houston, TX 77019
Attn: Konica Bradford, Senior Import Specialist
RE: Application for Further Review of Protest No: 5309-16-100097; Cement Flower Pots
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 5309-16-100097, timely filed by Fed Ex Trade Networks on May 19, 2016, on behalf of BFG Supply Company, LLC (Protestant). The AFR concerns the tariff classification of cement flower pots under the Harmonized Tariff Schedule of the United States (HTSUS). For this decision, U.S. Customs and Border Protection (CBP) has taken into consideration additional information provided by FedEx and Protestant’s counsel via email and two (2) samples sent to this office.
FACTS:
Protestant filed this AFR in regard to a single entry of cement flower pots at the Port of Houston. The merchandise was entered on February 13, 2015, and liquidated on December 11, 2015. Protestant entered the subject merchandise under subheading 6913.90.5000, HTSUS, which provides for: “Statuettes and other ornamental ceramic articles: Other: Other: Other.” On its original CBP Form 7501, Protestant described the merchandise as “cement flower pots ornamental art oth materia” (presumably meaning “cement flower pots ornamental articles other material”). The commercial invoices indicate the entry consisted of two assortments of cement flower pots. CBP liquidated the entry on December 11, 2015, under the same subheading 6913.90.5000, HTSUS.
In its Protest, Protestant claims classification under subheading 6913.90.3000, HTSUS, which provides for: “Statuettes and other ornamental ceramic articles: Other: Other: Of earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze, and mottled, streaked or solidly colored brown to black with metallic oxide or salt.” On its amended CBP Form 7501 submitted with CBP Form 19, Protestant describes the subject merchandise as: “cement flower pots ornm redbud w/lust motld g” (presumably meaning “cement flower pots ornamental red body with lustrous glaze.”).
To support its claim in regard to the first assortment of cement flower pots (item number LBF015MIXA), Protestant provides a two (2) page black and white printout from its website which includes a photograph of four (4) of a 12 piece assortment of what are described as “Liconfiber™ planters” from Michael Carr Designs (MCD). This particular collection of planters (which can also be described as flower pots), appears to have a leaf motif on the exterior and comes in a variety of sizes and colors, including gray and beige. Protestant did not provide a similar printout of item number LFB019MIXA (a 39 piece assortment of Liconfiber™ planters or flower pots from MCD described on the commercial invoice as a “waterfall planter mix”). Protestant did not present any further information or evidence about the subject merchandise.
According to information we found on both Protestant’s and MCD’s websites, we confirmed that the cement flower pots (or planters) are manufactured from what is alleged to be a composite material called Liconfiber™. According to the marketing materials, Liconfiber™ is a cement-based composite reinforced with an alkaline resistant fiberglass netting, both 70% lighter in weight and stronger than traditional glazed pottery, and frost and UV resistant.
On November 15, 2016, we asked Protestant to provide us with a sample from the Liconfiber™ collection for analysis by the CBP Laboratory and Scientific Services Directorate (LSSD). Protestant complied and provided two (2) samples. Both samples are square-shaped with the larger one measuring 9-1/2” x 9-1/2” and the smaller one fitting inside. The item number is 100580E and the color is barn gray. Although the item number does not match the item numbers of the cement flower pots that Protestant entered, both samples are from MCD’s Liconfiber™ collection and therefore are manufactured from the same material. The sales or marketing tags attached to the samples also state that they are portable, lightweight, ideal for indoors or outdoors, frost and UV resistant.
In its report dated February 17, 2017, CBP LSSD concluded the following:
“The sample is an article of concrete which is made by mixing cement with water and an inert material. The sample contains two glass fiber mesh sheets embedded in the concrete. Each sheet of the mesh is made of bundles of glass fibers glued together with polymer resin. These bundles are cross-woven into a mesh. The fibers are not randomly mixed in the concrete. The outside is painted with two different colors of paint, gray and rust red.”
ISSUE:
Whether the subject cement flower pots are classified under subheading 6913.90.30, HTSUS, as ceramic articles of “earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze and mottled, streaked or solidly colored brown to black with metallic oxide or salt,” or under subheading 6913.90.50, HTSUS, as “Other” ceramic flower pots or planters, or under subheading 6810.99.00, HTSUS, as “articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other.”
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review will be accorded to a party filing an AFR that meets the requirements of section 174.25 and at least one of the criteria in section 174.24. The criteria for an AFR set forth in the applicable regulations, section 174.24 (19 C.F.R. §174.24), provide:
Further review of a protest which would otherwise be denied by the port director shall be accorded a party filing an application for further review which meets the requirements of §174.25 when the decision against which the protest was filed:
Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.
Protestant argues that further review of its protest is properly warranted pursuant to 19 C.F.R. § 174.24(a), as CBP’s decision is inconsistent a ruling of the Commissioner of Customs or his designee. Specifically, Protestant asserts that the Port’s liquidation of the subject entries contradicts CBP’s approval of a Post Summary Correction (PSC) of a previous entry at the Ports of Detroit and Chicago.
Upon our review of the PSC at issue, we note that the consumption entry was made at the Port of Chicago and not both the Ports of Chicago and Detroit, as Protestant claims. Furthermore, we do not find any evidence that the decision was based upon an actual examination of the merchandise. Instead, it appears that the PSC was blindly approved without such examination. We also find that the merchandise as described in the commercial invoices in regard to the PSC is not identical to the merchandise at issue in the instant matter. Thus, Protestant does not meet the criteria in section 174.24(a) for further review. However, we find that Protestant meets the criteria in section 174.24(b) in that the instant case involves questions of fact that have not been ruled upon previously. Therefore, further review of Protest No. 5309-16-100097 is warranted.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2015 HTSUS provisions under consideration are as follows:
6810 Articles of cement, of concrete or of artificial stone,
whether or not reinforced:
Other articles:
6810.99.00 Other
6810.99.80 Other
*****************
6913 Statuettes and other ornamental ceramic articles:
6913.90 Other:
Other:
6913.90.30 Of earthenware, whether or not decorated, having
a reddish-colored body and a lustrous glaze, and
mottled, streaked or solidly colored brown to black
with metallic oxide or salt
6913.90.50 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN 69.13 states the following, in relevant part:
This heading covers a wide range of ceramic articles of the type designed essentially for the interior decoration of homes, offices, assembly rooms, churches, etc., and outdoor ornaments (e.g., garden ornaments).
Additional U.S. Note 5(c) to Chapter 6, HTSUS, provides, in relevant part, as follows:
For the purposes of headings 6909 through 6914…the term “earthenware” embraces ceramic ware, whether or not glazed or
decorated, having a fired body which contains clay as an essential
ingredient, and will absorb more than 3 percent of its weight with
water.
The EN 68.10 states the following, in relevant part:
The heading includes, inter alia…ceiling or wall mesh or lath (consisting of a wire framework combined with a predominating proportion of concrete)…vases, flower-pots, architectural or garden ornaments…”
In support of its position that the subject merchandise is properly classified under subheading 6913.90.30, HTSUS, Protestant offered a two (2) page black and white printout from its website. Subsequently, at our request, it delivered two (2) samples. Although the printout includes some information about the Liconfiber product, including the name of one of the entered assortments, item number, the identity of the manufacturer, the manufacturer’s suggested retail price (MSRP), etc., it does not include information that is pertinent to the characteristics needed to classify the flower pots under subheading 6913.90.30, HTSUS. Moreover, since subheading 6913.90.30, HTSUS, requires the instant merchandise to be “…mottled, streaked or solidly colored brown to black…”, color and finish are at issue. At the very least, Protestant should have included information in regard to all of its invoiced flower pots or planters in the form of color copies of its catalog pages, actual color photographs, or an internet link to its website and/or its manufacturers’ website(s) with the necessary color pictures and information.
Furthermore, Protestant did not offer information or evidence (e.g., testing) that the merchandise meets the definition of “earthenware” as set forth by Additional U.S. Note 5(c) to Chapter 6, HTSUS, i.e., that clay is an essential ingredient and will absorb more than 3 percent of its weight with water. Similarly, Protestant did not provide any technical information about its luster, glaze, colorants, materials, salting mixtures, etc., or manufacturing process (e.g., kiln firing and temperature, etc.) to prove or even suggest that the subject merchandise is of earthenware, having a lustrous glaze, mottled, streaked or solidly colored brown to black with metallic oxide or salt.
A prima facie case is a case based on evidence, i.e., prima facie evidence, which is sufficient to establish a fact unless rebutted. The term “prima facie evidence” is defined as, “evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.” Black’s Law Dictionary, 638 - 39 (9th ed. 2009). In the context of the presumption of correctness of CBP’s decisions under 28 U.S.C. § 2639(a)(1), a prima facie case means the evidence presented by an importer derived from an independent source or test that is sufficient to sustain the importer’s claimed classification. Because Protestant failed to offer any evidence as noted above or independent laboratory testing of the flower pots to indicate they are in fact made of ceramic upon which a prima facie case could be made, we determine that Protestant has failed to establish a prima facie case that the imported merchandise is classified under 6913.90.30, HTSUS
However, based upon the AFR/Protest description of the merchandise and the commercial invoices that described the flower pots as cement instead of ceramic, we asked Protestant to submit a sample for CBP LSSD to analyze. Protestant complied with our request and provided two (2) samples. Despite the fact that the samples did not match the item numbers listed on the commercial invoices, they appeared to be manufactured from the same Liconfiber material and therefore we deemed them acceptable.
Heading 6810, HTSUS, includes articles of cement, of concrete or artificial stone, whether or not reinforced. Based upon the CBP LSSD’s conclusion that the flower pots are articles of concrete which are made by mixing cement with water, the instant merchandise fits the heading. Furthermore, EN 68.10 states that the heading includes “vases, flower-pots, architectural or garden ornaments” (emphasis added) so the instant flower pots are clearly described in EN 68.10. Furthermore, since CBP LSSD concluded that the instant merchandise also has two sheets of fiberglass mesh embedded into the concrete, it again meets the description of the heading, “whether or not reinforced.” Arguably, we would posit that the flower pots, as they consist of fiberglass mesh encased in concrete, are constructed in a similar manner as described by EN 68.10, “ceiling or wall mesh or lath (consisting of a wire framework combined with a predominating proportion of concrete.”
Ruling N061275 (June 16, 2009) describes an agglomerated stone planter which is reinforced with a fiberglass core and made to resemble a terracotta planter. It is classified in 6810.99.0090, HTSUS. Ruling N070116 (September 28, 2009) discusses the classification of a planter which laboratory analysis determined is comprised of stone powder uniformly agglomerated with plastic resin and reinforced with fiberglass. It is also classified in 6810.99.0090, HTSUS.
Based on the above information and established precedent, we determine that the instant cement flower pots which consist of concrete reinforced with fiberglass mesh, are correctly classified under 6810.99.0080, HTSUS.
HOLDING:
By application of GRI 1, the subject cement flower pots are provided for in subheading 6810.99.0080, HTSUS, as “articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other…Other.” The general column one, rate of duty is free.
Since re-classification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to ALLOW the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc: Petrina Evans, Director, Consumer Products & Mass merchandising Center of Excellence
Marcelo I. Mancheno, Jr., Supervisory Import Specialist, Consumer Products &
Mass Merchandising CEE