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