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HQ 954771




February 14, 1994

CLA-2 CO:R:C:M 954771 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.91.00

District Director
U.S. Customs Service
127 N. Water Street
Ogdensburg, New York 13669

RE: Protest No. 0712-93-100556; Polymer bonded magnesia-carbon bricks; 6902.10.10; Additional U.S. Note 1 and 2, Chapter 69; ceramic; refractory; EN 68.15; firing

Dear District Director:

This is in response to the Application for Further Review of Protest No. 0712-93-100556, which pertains to the tariff classification of polymer bonded magnesia-carbon bricks under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The entry of the polymer bonded magnesia-carbon bricks ("bricks") was liquidated on February 26, 1993, under subheading 6815.91.00, HTSUS, as other articles of stone or of other mineral substances, containing magnesite. In a protest timely filed on May 17, 1993, the protestant contends that the bricks are classified under subheading 6902.10.10, HTSUS, as magnesite refractory bricks. The protestant has submitted an analysis of the physical properties of the bricks.

The competing subheadings are:

6815.91.00 Articles of stone or of other mineral substances (including articles of peat), not elsewhere specified or included...Other articles...Containing magnesite, dolomite or chromed.

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.

ISSUE:

Are the polymer bonded magnesia-carbon bricks classified under subheading 6815.91.00, HTSUS, as other articles of stone or of other mineral substances, containing magnesite, or under subheading 6902.10.10, HTSUS, as magnesite refractory bricks?

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...."

Subheading 6902.10.10, HTSUS, falls within Chapter 69, HTSUS, making the Chapter 69, HTSUS, notes applicable to this classification. Note 1, Chapter 69, HTSUS, states that "[t]his chapter applies only to ceramic products which have been fired after shaping...." Therefore, the bricks must meet the definition of a ceramic article, as set forth in Additional U.S. Note 1, Chapter 69, HTSUS:

For the purposes of this chapter, a "ceramic article" is a shaped article having a glazed or unglazed body of crystalline or substantially crystalline structure, the body of which is composed essentially of inorganic nonmetallic substances and is formed and subsequently hardened by such heat treatment that the body, if reheated to pyrometric cone 020, would not become more dense, harder, or less porous, but does not include any glass article.

Additionally, to be classified under subheading 6902.10.10, HTSUS, the bricks must meet the refractory definition in Additional U.S. Note 2, Chapter 69, HTSUS:

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 degrees Celsius when heated at 60 degrees Celsius 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.

Our information indicates that polymer bonded bricks of this type, if reheated to pyrometric cone 020, would become more dense and less porous. Therefore, they do not meet the definition of a ceramic article in Additional U.S. Note 1, Chapter 69, HTSUS, and are excluded from classification under subheading 6902.10.10, HTSUS.

Classification under subheading 6815.91.00, HTSUS, is supported by Explanatory Note (EN) 68.15 of the Harmonized Commodity Description and Coding System (pg.909-910), which states that this heading covers:

(3) Bricks and other shapes (in particular magnesite or chrome-magnesite products), chemically bonded but not yet fired. These articles are fired during the first heating of the furnace in which they are installed. Similar products presented after firing are excluded (heading 69.02 or 69.03).

The ENs, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The bricks in this case have not been previously installed in a furnace and fired as they were shipped directly from the manufacturer. Polymer bonded bricks of this type are manufactured with a polymer in lieu of firing the merchandise before shipment. Therefore, it is very unlikely that these bricks were fired before importation into the U.S.

Moreover, the protestant has failed to submitted any evidence that the bricks were fired before importation. It is our opinion that the bricks at issue are magnesite bricks which have not been fired. Classification under subheading 6902.10.10, HTSUS, would be applicable only if the bricks were fired before importation into the U.S. Pursuant to EN 68.15 and the available information, the bricks are properly classified under subheading 6815.91.00, HTSUS.

HOLDING:

The polymer bonded magnesia-carbon bricks are classified under subheading 6815.91.00, HTSUS, as other articles of stone or of other mineral substances, containing magnesite. 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, 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, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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