CLA-2 CO:R:C:M 955836 KCC
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