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HQ 089316

June 7, 1991

CLA-2 CO:R:C:M 089316 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6914.90.00

Mr. Michael P. Maxwell
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, NY 10017

RE: Ceramic Fireplace Brick

Dear Mr. Maxwell,

This is in response to your letter of April 8, 1991, written on behalf of your client, Ruegg Fireplaces, concerning the classification of ceramic fireplace brick under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The material in question are fireplace brick used to form a fireplace floor and wall. The brick is composed of a blend of burned and fresh clay and has a minimum heat rating of 1500 degrees centigrade. Since the brick will be placed in household fireplaces, you stated that it will generally not be subjected to more than 700 to 900 degrees fahrenheit in actual use.

ISSUE:

Whether the ceramic fireplace brick can be classified as refractory brick under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Counsel for the importer claims that the fireplace brick are refractory brick and should be classified under Heading 6902.90.10, HTSUSA, which provides for "Refractory bricks, ..., other than those of siliceous fossil meals or similar siliceous earths: Other: Bricks: Clay."

It is argued that the fireplace brick meets the statutory definition of "refractory" in Chapter 69, U.S. Note 2, HTSUSA. It states that "the term 'refractory' is applied to articles which have a pyrometric cone equivalent of at least 1500 degrees centigrade when heated at 60 degrees centigrade per hour." Counsel claims that if the fireplace brick falls under that definition, it must be classified as refractory brick.

However, the analysis does not end with that definition. To further understand the meaning of "refractory" for classification purposes, the Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note B (p.913) states that to fall in heading 69.02 or 69.03 as refractory goods, articles must not only be capable of resisting high temperatures, they must also be designed for high temperature work ..."

The fireplace brick is "capable" of withstanding temperatures up to 1500 degrees centigrade, however, as it will be placed in household fireplaces, it is not "designed" for high temperature work, since the brick will not be subjected to temperatures above 900 degrees fahrenheit. Therefore, the fireplace brick cannot be classified as refractory brick under Headings 6902 or 6903.

We note that under Explanatory Note (1) to Heading 6914 (p.924), "ceramic parts of stoves and fireplaces" are included under "Other ceramic articles. Accordingly, the fireplace brick is classified under Heading 6914.90.00 which provides for "Other ceramic articles: Other."

HOLDING:

The ceramic fireplace brick is classifiable under subheading 6914.90.00 which provides for "Other ceramic articles: Other." The general, column one rate of duty is 8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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