CLA-2 RR:TC:MM 960294 HMC
Port Director of Customs
200 East Bay Street
Charleston, SC 29401
RE: PRD 1601-96-100360; Lenox 10 Inch Plate Kiln Furniture;
Subheadings 6903.20.00 and 6914.90.80; Additional U.S. Note 2 to
Chapter 69; General Explanatory Note to Chapter 69; Other
Refractory Ceramic Goods; Other Ceramic Articles.
Dear Port Director:
This is our decision on Protest 1601-96-100360, filed
against your classification of the Lenox 10 inch plate kiln
furniture ("ceramic setter"). The entries under protest were
liquidated on August 2, 1996, and this protest timely filed on
October 31, 1996.
FACTS:
The merchandise under protest consists of a ceramic setter,
which is used to maintain the shape of fine china dinnerware
through the firing of the dinnerware. The importer states that
the setter is used in the bisque kiln firing process, where
unfired greenware is fired into bisqueware, and in the glost kiln
firing process, where the bisqueware is glazed. It is claimed
that the merchandise is an alcorit product, which contains by
weight 89% of the compounds alumina and silica, and that the
product is specifically designed for high-temperature work in the
production of china dinnerware.
The merchandise was entered as other refractory ceramic
goods under subheading 6903.20.00 of the Harmonized Tariff
Schedule of the United States (HTSUS). However, the entries were
liquidated under subheading 6914.90.80, HTSUS, as other ceramic
articles.
The provisions under consideration are as follows:
6903 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:
6903.20.00 Containing by weight more than 50
percent of alumina (AlO) or of a mixture
or compound of alumina and of silica
(SiO)...2%
* * * *
6914 Other ceramic articles:
6914.90 Other:
6914.90.80 Other...6.6%
ISSUE:
Whether the ceramic setter is classifiable as other
refractory ceramic goods under subheading 6903.90.00, HTSUS, or
as other ceramic articles under subheading 6914.90.80, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Protestant contends that the merchandise is properly
classified under subheading 6903.20.00, HTSUS, as other
refractory ceramic goods. Protestant claims that the ceramic
setter meets the criteria for refractory material set forth in
Chapter 69, sub-Chapter I. Protestant states that the ceramic
setter is capable of resisting high temperatures in excess of
1350øC. Chapter 69 is divided in two parts or sub-Chapters.
Sub-Chapter I covers goods of siliceous fossil meals or of
similar siliceous earths, and refractory goods. Sub-Chapter II
covers other ceramic products. Headings 6901 through 6903 are
included in sub-Chapter I, and headings 6904 through 6914 fall
under sub-chapter II. Accordingly, we must determine whether the
subject setters are refractory goods of sub-Chapter I or other
ceramic products of sub-Chapter II.
Chapter 69, Additional U.S. Note 2, HTSUS, provides as
follows:
For the purposes of headings 6902 and 6903, the term
"refractory" is applied to articles which have a
pyrometric cone equivalent of at least 1500 C when
heated at 60 C per hour (pyrometric cone 18).
Refractory articles have special properties of strength
and resistance to thermal shock and may also have,
depending upon the particular uses for which designed,
other special properties such as resistance to abrasion
and corrosion.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989). General EN (B) to sub-Chapter I,
Chapter 69, HTSUS, states, at page 997, that
To fall in heading 6902 or 6903 as refractory
goods, articles must not only be capable of
resisting high temperatures, they must also be
designed for high temperature work.
This EN further states, at page 998, that
headings 6902 and 6903 do not cover articles
which, though sometimes described as refractory or
semi-refractory, are incapable of withstanding
industrial temperatures of the type described
above. Such articles fall in the appropriate
heading of sub-Chapter II.
A sample of the merchandise in this instance was forwarded
to the Customs laboratory for analysis. The laboratory reported
that the setter did not meet the definition of Additional U.S.
Note 2 to Chapter 69. Tests showed that the setters did not
resist temperatures of 1,500øC. We thus find that the ceramic
setter in this instance does not meet the definition of
refractory goods. It is not designed to resist high temperature
work. Since EN 69.14 states that heading 6914 covers all ceramic
articles not covered by other headings of this Chapter or in
other Chapters of the Nomenclature, the ceramic setter is
classifiable under subheading 6914.90.80, HTSUS.
HOLDING:
Under the authority of GRI 1, the Lenox 10 inch plate kiln
furniture is provided for in heading 6914, HTSUS. It is
classifiable under subheading 6914.90.80, HTSUS, as "Other
ceramic articles: Other: Other."
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should 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 take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division