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