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HQ 962906




August 9, 2002

CLA-2 RR:CR:GC 962906 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6909.11.20

Port Director
U.S. Customs Service
200 E. Bay Street
Charleston, SC 29401

RE: Protest 1601-99-100078; Ceramic Grinding Media

Dear Port Director:

This is our decision on protest 1601-99-100078 filed by counsel on behalf of Alabama Carbonates, L.P., against your action regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of ceramic grinding media. The entries under protest were made on various dates in 1998 and all were liquidated on March 26, 1999. This protest was timely filed on May 11, 1999. In preparing this ruling, consideration was given to arguments presented in a meeting with members of my staff on October 31, 2001, and additional submissions dated July 2, September 7, and November 27, 2001.

FACTS:

The subject articles are ceramic beads identified as ER 120B, that are used in grinding mills to grind marble to a one micron size. The protestant claims that the articles are of porcelain.

The protestant claims that the ceramic grinding media should be classified in the provision for ceramic wares for laboratory, chemical or other technical uses: of porcelain or china; under subheading 6909.11.20, HTSUS. Customs determined that the ceramic grinding media was not of porcelain or china and classified the articles under subheading 6909.19.50, HTSUS, as other ceramic wares.

ISSUE:

Whether the ceramic grinding media is considered stoneware or porcelain for tariff purposes.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

The HTSUS provisions under consideration are as follows:

Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods:

Ceramic wares for laboratory, chemical or other technical uses:

Of porcelain or china:

Machinery parts

Other:

6909.19.50 Other

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Counsel argues that the identical article produced by the same manufacturer, SEPR Ceramic Beads And Powders, has been entered and accepted by Customs by several other importers under subheading 6909.11.20, HTSUS. Evidence to support the contention was submitted. Counsel also maintains that yor classification is contrary to a Stipulated Judgment on Agreed Statement of Facts (the Stipulation) accepted by the U.S. Court of International Trade in litigation on substantially similar merchandise.

Initially, we note that there is no obligation for Customs to classify merchandise in entries not before the Court under the Stipulation, and/or future entries, in the same manner as stipulated. The courts have indicated the lack of precedential value in a case submitted on agreed stipulation of facts, without trial or briefing or opinion by the court. An agreement to stipulate may be a culmination of varied factors, and should have no precedential value. See Siemens America, Inc., and Siemens Corp v. United States, 2 CIT 136, 40 (1981), aff’d, 1 Fed. Cir. (T) 9, 692 F.2d 1382 (Fed. Cir. 1982). The Supreme Court made it clear that, as collateral estoppel does not apply in classification cases, Customs is free to relitigate the classification of the merchandise at issue in an action covering other entries. United States v. Stone & Downer Co., 274 U.S. 225 (1927); see also, Schott Optical Glass, Inc. v. United States, 748 F.2d 677 (Fed. Cir. 1984); Heraeus-Amersil, Inc. v. United States, 13 CIT 764, 766 (1989); Ashdown, U.S.A., Inc. v. United States, 12 CIT 808, 810 n.1, 696 F. Supp. 661 (1988). However, Customs previously held that ceramic beads for use as a grinding media are classified in subheading 6909.11.20, HTSUS. See HQ 089007 (July 22, 1991), NY C88836 (June 25, 1998). Therefore, because of the other importations, stipulation and prior decisions cited above, the instant importations subject to this protest are classified in subheading 6909.11.20, HTSUS, as ceramic wares for laboratory, chemical or other technical uses, of porcelain or china, machinery parts.

HOLDING:

The subject ceramic beads for use as grinding media are classifiable under subheading 6909.11.20, HTSUS, as ceramic wares for laboratory, chemical or other technical uses, of porcelain or china, machinery parts.

The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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