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HQ 957415




September 6, 1995

CLA-2 R:C:M 957415 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6902.20.50; 6903.20.00

District Director
U.S. Customs Service
111 W. Huron Street
Room 603
Buffalo, New York 14202-2378

RE: Protest 0901-94-101205; refractory articles; well blocks, solid plugs, bell bricks, center risers, bottom guides, spider bricks, runner bricks, up-gates; Additional U.S. Note 2, Chapter 69; refractory bricks; 6902.20.50; other refractory articles; 6903.20.00; other refractory ceramic goods; EN 69.02 and 69.03; John C. Rogers & Co., Inc., a/c Hoeganaes Sponge Iron Corp; Pittsburgh Plate Glass Company; HRLs 086441, 087895, 061716, 083745, and 955836

Dear District Director:

This is in regards to Protest 0901-94-101205 concerning the tariff classification of refractory articles under the Harmonized Tariff Schedule of the United States (HTSUS). Additional information contained in submissions dated September 30, October 13, and 19, 1994, and August 7, 1995, and presented in a meeting at Customs Headquarters on August 4, 1995, were taken into consideration in rendering this decision.

FACTS:

The refractory articles at issue are well blocks, solid plugs, bell bricks, center risers, bottom guides, spider bricks, runner bricks, and up-gates. The protestant states that the refractory articles are used in the "bottom pour system" by the steel industry which involves making molten steel in a furnace. When finished, the furnace is tapped at the bottom and the molten steel is emptied into a ladle. Thereafter, the molten steel is released from the bottom of the ladle into a fountain system. Molten steel enters the fountain system at the funnel, passes down through hollow runner bricks and finally emerges to enter the bottom of various molds through outlet bricks. The protestant states that the ladle and fountain are integral parts of the furnace because they are permanent attachments to the furnace and are only removed to be cleaned or fixed. The protestant states that from the time the molten steel enters the ladle, courses through the fountain and into the molds, less than twenty minutes elapses. Throughout this process, the molten steel remains at a constant temperature of approximately 100 to 150°F above liquidus. The molten steel begins to cool and harden when it enters the mold. It remains in the mold for 3 to 4 hours. Specifically, the well blocks and solid plugs are used in the ladle, and the bell bricks, center risers, bottom guides, spider bricks, runner bricks, and up-gates are used in the fountain system.

The entry of the refractory articles was liquidated on April 29, 1994, under subheading 6903.20.00, HTSUS, as other refractory ceramic goods. In a protest timely filed on July 18, 1994, the protestant contends that the refractory articles are properly classified under subheading 6902.20.10, HTSUS, as refractory brick.

ISSUE:

Are the refractory articles, well blocks, solid plugs, bell bricks, center risers, bottom guides, spider bricks, runner bricks, up-gates, classified under subheading 6902.20.10, HTSUS, as refractory brick?

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 the terms of the headings and any relative section or chapter notes...." The subheadings at issue are as follows:

6902.20 Refractory bricks, blocks, tiles and similar refractory ceramic constructional goods, other than those of siliceous fossil meals or similar siliceous earths...Containing by weight more than 50 percent of alumina (AL2O3), of silica (SiO2) or of a mixture or compound of these products...

6902.20.10 Bricks....

6902.20.50 Other....

6903.20.00 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...Containing by weight more than 50 percent of alumina (AL2O3), or of a mixture or compound of alumina and of silica (SiO2).

For a ceramic article to be classified under either headings 6902 or 6903, it must meet the definition of refractory as found in Additional U.S. Note 2, Chapter 69, HTSUS, which states that:

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 to 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.

In this case, each of the articles is considered a refractory article pursuant to Additional U.S. Note 2, Chapter 69, HTSUS. As noted in Customs Laboratory Reports 3-94-30409-003 dated January 26, 1994, and 3-94-30941-002 dated May 25, 1994, various samples were tested and found to meet the "refractory" definition of Additional U.S. Note 2, Chapter 69, HTSUS. Further, the articles tested were found to contain by weight more than 50% of a mixture of alumina and silica. Therefore, we must determine whether classification is appropriate under heading 6902, HTSUS, or under heading 6903, HTSUS.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor 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. 89-90, 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.

It includes, inter alia:

(1) Bricks of all shapes (parallel piped, wedge shaped, cylindrical, semi-cylindrical, etc.), including keystones and other specially shaped bricks (e.g., runner bricks, concave on one face and rectilinear on the others) even if they are clearly recognizable as being of the kind specially designed for the construction of plant or machinery of Section XVI.

(2) Refractory blocks and tiles for flooring, walls, hearths, etc.

The heading excludes tubing, piping (including runways in the form of half-cylinders) and angles, bends and similar tube or pipe fittings of refractory materials (heading 69.03) (emphasis in original).

EN 69.03 (pg. 915), states that:

This heading covers all refractory goods not specified or included in the preceding headings (emphasis in original).

These articles 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; ingot moulds; etc.

(2) Tubing, piping (including runways in the form of half-cylinders) and angles, bends and similar tube or pipe fittings, even if intended for use as permanent fixtures in construction work (emphasis in original).

The classification of refractory brick has been discussed in various court cases. John C. Rogers & Co., Inc., a/c Hoeganaes Sponge Iron Corp. v. United States, 64 Cust. Ct. 12, C.D. 3952 (1970), affirmed 58 CCPA 104, C.A.D. 1012, 436 F.2d 1034 (1971) (Rogers I), and John C. Rogers & Co., Inc., a/c Hoeganaes Sponge Iron Corp. v. United States, 73 Cust. Ct. 119, C.D. 4562 (1974), affirmed 524 F.2d 1220 (CCPA 1975) (Rogers II), held that "saggers" and "rings", used to build a chamber in which cast-iron is packed for reduction in a furnace, are not "fire bricks" classifiable in paragraph 201(a) of the Tariff Act of 1930. The court stated that "fire brick" did "not 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." Id. at 16. The court determined that size and shape were not essential criteria for "fire brick."

In Pittsburgh Plate Glass Company v. United States, 73 Cust. Ct. 49, C.D. 4553 (1974), the court classified "tank blocks" of various sizes and shapes, which were used in constructing a lining in the float bath chamber in float glass production, in item 531.27, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to subheading 6902.20.10, HTSUS), as refractory bricks. The float glass production process involves the mixing of batch ingredients, introduction of the ingredients to the melting furnace, and discharge of the finished molten glass to a float bath chamber. In the float bath chamber, the glass spreads onto the surface of molten tin and is continuously drawn through a diminishing temperature environment in such a way that the glass hardens to its final form and is conveyed out of the float chamber into the annealing oven and thence to final processing and packing. The court relied on Rogers I for the principal that refractory bricks or fire bricks are heat-resistant articles used in the construction of linings of furnaces, ovens and similar installations. The court stated that item 531.27, TSUS, is an eo nomine designation without limitation, and therefore, includes all forms of refractory bricks, absent any showing of contrary legislative intent, judicial decision or administrative practice. The court stated that the "tank blocks" whether used in the tin bath or in the melting furnace for glass manufacture, "serve the same general function; provide a heat-resistant lining." Id. at 54.

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). The subject nomenclature in the TSUS (item 531.27) and the HTSUS (heading 6902) are similar because they both provide for refractory brick. We note that heading 6902, HTSUS, is more comprehensive that item 531.27, TSUS, because it also provides for other shaped refractory articles, i.e. blocks, tiles and similar refractory ceramic constructional goods. Although, the articles at issue are different types of refractory articles, we believe that the above cited court cases are instructive.

In HRL 086441 dated April 3, 1990, cruciforms were classified in item 531.27, TSUS, as refractory bricks, and in HRL 087895 dated December 13, 1990, cruciform checkers were classified under subheading 6902.20.10, HTSUS, as refractory bricks. HRL 086441 described the cruciforms as:

...pieces or bricks used to line the inside of regenerator furnaces in the glass industry. They are composed essentially of aluminum oxide, zirconium oxide, and silica. Cruciform bricks are used in the regenerator chamber and provide thermal insulation required to maintain the high heat and resist the corrosion of combustion gases found in glass production.

HRL 087895 described the cruciform checkers as:
firebricks of various shapes and sizes used to line regenerator chambers of furnaces. They are said to be comprised of a mixture of alumina and silica that exceeds 50 percent by weight.

HRL 086441 and HRL 087895 both stated that the cruciform and cruciform checkers are used to line regenerator chambers of furnaces. Specifically, these articles are used to create a thermal mass within the regenerator chamber above the combustion chamber and thus reduce the fuel requirements of the furnace. The heat produced is channeled through the assembled stacks of cruciforms or cruciform checkers which are super heated and retain much of the heat. Substantial cuts are achieved in fuel requirement; hence the term "regenerator furnace." This statement was the basis for classification of the articles as refractory bricks in item 531.27, TSUS, and subheading 6902.20.10, HTSUS.

In addition to HRL 086441 and HRL 087895, we issued HRL 061716 dated March 4, 1981, and HRL 083745 dated March 22, 1990, which also concerned the tariff classification of refractory bricks. HRL 061716 classified refractory articles used in coke ovens in item 531.27, TSUS, as refractory brick. The coke oven in question is composed of a regenerator portion below an area in which coal is transformed into coke in coking chambers. HRL 061716 states that:

Refractories used to construct these combustion chambers are divided into three functional types: (1) those which face the inside of the coking chamber; (2) those which face the inside of the coking chamber and possess a structural function; and (3) those which do not face the coking chamber. They are totally inside the combustion chambers.

HRL 061716 held that the refractory articles used in the coke oven were part of the lining and classifiable as refractory brick on the basis of their use. Additionally, HRL 061716 stated that this refractory brick tariff provision was an eo nomine provision which includes all forms of the articles without limitation. HRL 083745 classified QT refractory tiles used to line the throat aperture of a boiler furnace under subheading 6902.90.10, HTSUS, as other refractory brick. This ruling determined that the QT tiles were an integral part of the boiler furnace and not an adjacent auxiliary component. HRL 083745 noted that tiles similar to the QT tiles were used to line the furnace.

Based on the above cited cases, "refractory bricks" are heat-resistant articles used in the construction of linings of furnaces, ovens and similar installations. The size and shape of the article is not an essential criteria for tariff classification purposes. Use in the lining of the furnace, oven or similar installation is the essential criteria for defining a "refractory brick."

We are of the opinion that the refractory articles under consideration are not classifiable as refractory brick under subheading 6902.20.10, HTSUS. Although the well blocks, solid plugs, bell bricks, center risers, bottom guides, spider bricks, runner bricks and up-gates are designed to resist heat, they are not used in the lining of furnace, oven or similar installation. The well blocks and solid plugs are used in the ladle, and the bell bricks, center risers, bottom guides, spider bricks, runner bricks and up-gates are used in the fountain system. We note that both the ladle and fountain system may be associated with a particular furnace. However, we are of the opinion that the ladle and fountain system are not an integral part of the furnace. They are not attached to the furnace as the tin bath in Pittsburgh Plate Glass Company and the throat aperture in HRL 083745 were attached to the furnaces in those instances. See also, HRL 955836 dated July 11, 1994, which classified magnesite refractory tuyere nozzles under subheading 6903.90.00, HTSUS, as other refractory ceramic goods. Moreover, the ladle and fountain system do not perform the same function as a furnace or oven, and, therefore are not similar to a furnace or oven. The ladle and fountain system facilitate the movement of the molten steel into the molds. Therefore, the refractory articles are not classified under subheading 6902.20.10, HTSUS, as refractory brick.

It is our opinion that the bell bricks, center risers, bottom guides, spider bricks, runner bricks and up-gates are similar to the exemplars listed in EN 69.02(1). Therefore, they are classified under subheading 6902.20.50, HTSUS, as other refractory ceramic constructional goods. We note that EN 69.02 excludes tubing and piping from classification under heading 6902, HTSUS. However, there is no evidence that the bell bricks, center risers, bottom guides, spider bricks, runner bricks and up-gates are similar to tubing and piping. Nozzles and plugs are provided for eo nomine under heading 6902, HTSUS. Well blocks are not provided for eo nomine under heading 6902, HTSUS, but are used in conjunction with plugs and nozzles to form a unit that controls the molten steel flowing out of the ladle. Therefore, the well blocks and solid plugs are provided for under subheading 6903.20.00, HTSUS, as other refractory ceramic goods.

HOLDING:

The bell bricks, center risers, bottom guides, spider bricks, runner bricks and up-gates, are classified under subheading 6902.20.50, HTSUS, as other refractory ceramic constructional goods. The well blocks and solid plugs are classified under subheading 6903.20.00, HTSUS, as other refractory ceramic goods.

The 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, this decision, together with the Customs Form 19, should be mailed 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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