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HQ 955836




July 11, 1994
CLA-2 CO:R:C:M 955836 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6903.90.00

District Director
U.S. Customs Service
610 South Canal Street
Chicago, IL 60607

RE: Protest 3901-93-102123; magnesite refractory tuyere nozzles; 6902.10.10; magnesite refractory bricks; EN 69.02; EN 69.03; John C. Rogers & Co., Inc., a/c Hoeganaes Sponge Iron Corp. v. United States; Pittsburgh Plate Glass Company v. United States

Dear District Director:

This pertains to Protest 3901-93-102123, which concerns the tariff classification of magnesite refractory tuyere nozzles under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject articles are described by the protestant as follows:

The LD-CB Refractory consists of 5 kinds of magnesite bricks mortered together on one small piece of 427mm O.D. steel pipe.

Additionally, commercial invoices and packing lists further describe the articles as "tuyere nozzles" or "dummy tuyere nozzles." Tuyere nozzles are used as the openings by which preheated air and other gasses are blown into blast furnaces, forges, etc.

Upon importation, the entries of the magnesite refractory tuyere nozzles were liquidated on August 6, and September 10, 1993, under subheading 6903.90.00, HTSUS, as other refractory ceramic goods. In a protest timely filed on November 1, 1993, the protestant contends that the magnesite refractory tuyere nozzles are properly classified under subheading 6902.10.10, HTSUS, as magnesite refractory bricks. As evidence of classification as magnesite refractory bricks, the protestant has submitted a U.S. Court of International Trade "Stipulated Judgment On Agreed Statement of Facts" for Court No. 90-09-00455 dated July 28, 1992. The Judgement stipulates that LD-CB Equipment, LD-CB Refractory, Tuyeres are classified under subheading 6902.10.10, HTSUS.

The competing subheadings are as follows:

6902.10.10 Refractory bricks, blocks, tiles and similar refractory ceramic constructional goods, other than those of siliceous fossil meals or similar siliceous earths...Containing by weight, singly or together, more than 50 percent of the elements magnesium, calcium or chromium, expressed as MgO, CaO or CR2O3...Magnesite bricks.

6903.90.00 Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods), other than those of siliceous fossil meals or of similar siliceous earths...Other.

ISSUE:

Are the magnesite refractory tuyere nozzles classified under subheading 6902.10.10, HTSUS, as magnesite refractory bricks, or under subheading 6903.90.00, HTSUS, as other refractory ceramic goods?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

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, are to be used to determine the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 69.02 (pg. 914), states that:

This heading covers a group of refractory products (other than those of heading 69.01) normally used in the construction of ovens, kilns, furnaces or other plant for the metallurgical, chemical, ceramic, glass and other industries...(emphasis in original).

EN 69.03 (pg. 915), states that heading 6903, HTSUS, covers all refractory goods not specified or included in the preceding headings. EN 69.03 states that the articles included in heading 6903, HTSUS, include:

(1) Articles which, unlike the refractory products of heading 69.02, are in many cases not permanent fixtures, such as retorts, reaction vessels, crucibles, cupels and similar articles for industrial or laboratory use, muffles, nozzles, plugs, burner jets and similar parts of furnaces; saggars, stands and other kiln furniture to support or separate pottery during firing; sheaths and rods; stands for crucibles; ingots moulds; etc. (emphasis in original.)

The issue to be decided is whether the magnesite refractory tuyere nozzles are classified as refractory bricks or as other refractory ceramic goods. The issue of what is classified as a refractory brick has been discussed by the U.S. Customs Court in John C. Rogers & Co., Inc., a/c Hoeganaes Sponge Iron Corp. v. United States, 73 Cust. Ct. 119, C.D. 4562 (1974) (referred to as Rogers), which held that imported hollow tubes, rings and disks of silicon carbide were not classified as "fire brick" in item 531.27, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to heading 6902, HTSUS). The hollow tubes, rings and disks were assembled in the U.S. into a chamber on a kiln car and filled with a mixture of iron ore coke and limestone which was passed into a furnace to reduce the iron ore into sponge iron. The Court eliminated size and shape as essential criteria for determining whether an article is a "fire brick" and held that the term "fire brick" did not commonly include all articles used to resist heat, but only those heat-resistant articles used in the construction of linings for furnaces, ovens, and similar installations. See also, John C. Rogers & Co., Inc., a/c Hoeganaes Sponge Iron Corp. v. United States, 64 Cust. Ct. 12, C.D. 3952 (1970), aff'd 58 CCPA 104, C.A.D. 1012, 436 F.2d 1034 (1971), and Pittsburgh Plate Glass Company v. United States, 73 Cust. Ct. 49, C.D. 4553 (1974).

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, stated that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remain 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). Since the subject nomenclature in the TSUS (item 531.27) and HTSUS (heading 6902) are similar in that they are the respective tariff provisions for refractory/fire bricks, we find that Rogers is instructive.

The Court in Rogers determined that "fire bricks" in item 531.27, TSUS, are heat-resistant articles used in the construction of linings for furnaces, ovens, and similar installations. Additionally, EN 69.02 states that the refractory bricks of heading 6902, HTSUS, are "normally used in the construction of ovens, kilns, furnaces or other plant for the metallurgical, chemical, ceramic, glass and other industries...." The magnesite refractory tuyere nozzles are not used in this manner. They are used as the openings by which preheated air and other gases are blown into the furnace. Therefore, they are not classified under subheading 6902.10.10, HTSUS, as refractory bricks.

We note the U.S. Court of International Trade "Stipulated Judgment On Agreed Statement of Facts" for Court No. 90-09-00455 dated July 28, 1992, which stipulates that LD-CB Equipment, LD-CB Refractory, Tuyeres are classified under subheading 6902.10.10, HTSUS. However, articles covered by the stipulation judgment are not clearly identified or defined. Further, we are not aware of the basis for the stipulation. Therefore, we do not find that the stipulation is compelling and believe that the extent of the stipulation should be limited to the specific entry stated in the judgment.

The magnesite refractory tuyere nozzles are provided for eo nomine under heading 6903, HTSUS, which provides for "Other refractory ceramic goods (for example, retorts, crucibles, muffles, nozzles, plugs, supports, cupels, tubes, pipes, sheaths and rods), other than those of siliceous fossil meals or of similar siliceous earths...(emphasis added)." Specifically, the articles under consideration are classified under subheading 6903.90.00, HTSUS, as other refractory ceramic goods.

HOLDING:

The magnesite refractory tuyere nozzles are classified under subheading 6903.90.00, HTSUS, as other refractory ceramic goods.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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