CLA-2 CO:R:C:G 086773 RFC
Ms. Sandra L. Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, New York 10016
RE: Reconsideration and Revocation of New York Ruling Letters
(NYRL) 846502 and 846503; mortars
Dear Ms. Friedman:
This letter is in response to your request of March 21,
1990, on behalf of Mapei, Inc. of Quebec, Canada, for a
reconsideration of NYRL 846502 of November 1, 1989 and NYRL
846503 of November 14, 1989, both of which concerned tariff
classification rulings under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA).
FACTS:
There exist four separate products for which tariff
classification rulings were sought. The products may be
identified and described as follows:
KERABOND. This product consists of sand, cement, cellulose
fibers and accelerator. It is used to set floor and wall tiles.
ULTRA/FLEX. This product consists of sand, cement,
cellulose fibers, accelerator, and polymer. It is used to set
floor and wall tiles.
KERACOLOR FLOOR. This product consists of sand, cement,
accelerator and pigment. It is used to fill spaces or joints
between floor or wall tiles.
KERACOLOR WALL. This product consists of cement, filler,
cellulose fibers, accelerator, and pigment. It is used to fill
spaces or joints between floor or wall tiles.
The products identified above as Kerabond and Ultra/Flex
are simply nonrefractory mortars based on their material
compositions and uses. See Webster's Ninth New Collegiate
Dictionary 773 (1989). The products identified above as
Keracolor Floor and Keracolor Wall are simply grouts based on
their material compositions and uses; and, as a grout is merely a
type of mortar, these products are also nonrefractory mortars.
Id. at 539.
ISSUES:
(1) What is the proper classification under the HTSUSA of a
product consisting of sand, cement, cellulose fibers, and
accelerator that is used to set floor and wall tiles?
(2) What is the proper classification under the HTSUSA of a
product consisting of sand, cement, cellulose fibers,
accelerator, and polymer that is used to set floor and wall
tiles?
(3) What is the proper classification under the HTSUSA of a
product consisting of sand, cement, accelerator, and pigment that
is used to fill spaces or joints between floor or wall tiles?
(4) What is the proper classification under the HTSUSA of a
product consisting of cement, filler, cellulose fibers,
accelerator, and pigment that is used to fill spaces or joints
between floor or wall tiles?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRIs). GRI 1 requires
that classification be determined first according to the terms of
the headings of the tariff and any relative section or chapter
notes and, unless otherwise required, then according to the
remaining GRIs, taken in order.
Heading 3823 provides for, among other things, chemical or
other preparations. Explanatory Note (B) to heading 3823 states,
among other things, that "[t]he preparations classified here may
be either wholly or partly of chemical products...or wholly of
natural constituents...[and include]...[n]on-refractory
mortars...." Within this heading, subheading 3823.50.0050
provides for non-wet, nonrefractory mortars and concretes. As
indicated above, the instant goods are merely preparations that
constitute non-refractory mortars. Therefore, the goods are
provided for in the HTSUSA under subheading 3823.50.0050, and
they should be so classified.
A review of the Explanatory Notes during the process of
classifying the instant goods reveals the following description
relating to products included as "nonrefractory surfacing
preparations" under heading 3214 of the HTSUSA: "Preparations in
powder form based on quartz and cement with small quantities of
added plasticisers, used for instance, after adding water, for
setting wall and floor tiles." See Explanatory Note (II) (B)
(2) to heading 3214. Upon initially reading this description,
one may be inclined to believe that the instant goods should be
classified as "nonrefractory surfacing preparations" under
heading 3214. A consideration of the all the Notes to heading
3214 and of what constitutes a "surfacing preparation," however,
shows this not to be the case. First, this description does not
describe the instant goods and is inconsistent with that set
forth in the general description of "nonrefractory surfacing
preparations" in the Explanatory Notes to heading 3214:
"Nonrefractory surfacing preparations are used on facades, indoor
walls, floors and ceilings, swimming pool walls and floors, etc.,
to make them waterproof and improve their appearance. Generally
they remain visible as the final surfacing." The instant goods
do not contain plasticisers, are not used as a waterproofing
material, do not remain visible as the final surfacing, and are
not used to improve the appearance of the surface to which they
are applied.
Second, it is a long-standing rule of tariff classification
that tariff statutes are drafted in the language of commerce, and
that the commercial meaning is presumed to be the same as the
common meaning unless a different commercial designation is
established. As the name implies and as commonly and
commercially understood, "surfacing preparations" are used to
prepare a surface (for example, to smooth out irregularities or
as a stucco coating) and not as a bond or binder to hold or
secure tiles to a floor or wall or to fill the spaces or joints
between floor or wall tiles.
HOLDING:
All four of the above-identified products are properly
classified under subheading 3823.50.0050, HTSUSA, which provides
for nonrefractory mortars and concretes, other. Goods classified
under this subheading may be entered free of duty.
In view of the above, NYRLs 846502 and 846503 are hereby
revoked to the extent that they concern the above-identified
products. See 19 CFR 177.9(d).
Sincerely,
John Durant, Director
Commercial Rulings Division