CLA-2 RR:CR:GC 959896 PH
Ms. Diana M. de Montemayor
Post Office Box 6001
Laredo, Texas 78042-6001
RE: Nonrefractory mortar; surfacing preparation; sand; cement;
additives; refractory; U.S. Additional Note 2, Chapter 69; EN
32.14; HQs 086773; 089307; 956145
Dear Ms. de Montemayor:
This is in reference to your request dated August 30, 1996,
on behalf of Uniblock, S.A., for a ruling as to the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of "Uniazul" and "Uniblock". We regret the
extended delay in responding to your request.
FACTS:
The merchandise under consideration consists of 2 different
mixtures stated to contain portland white cement. Uniazul also
contains small amounts of cellulose ether and calcium stearate,
with the remainder of the mixture consisting of marble sand. The
ratio of marble sand to cement is approximately 2.3:1. The
mixture is described as a "thin set mortar" to be used to join
tile, marble, and ceramic coatings in walls and floors. Uniblock
is stated to contain 3.2% hydrated lime and small amounts of
calcium stearate, glass fiber, and pigments, in addition to
cement and marble sand. The ratio of marble sand to cement is
approximately 3.8:1. Uniblock is described as a final finish on
inside and outside walls and facades, with special additives for
setting that make water repellence possible.
The subheadings under consideration are as follows:
3214.90.5000 Glaziers' putty, grafting putty, resin cements,
caulking compounds and other mastics; painters'
fillings; nonrefractory surfacing preparations for
facades, indoor walls, floors, ceilings or the
like: ... Other: ... Other.
The 1998 general column one rate of duty for goods classifiable
under this provision is 9.2% ad valorem.
3824.50.0050 Prepared binders for foundry molds or cores;
chemical products and preparations of the chemical
or allied industries (including those consisting
of mixtures of natural products), not elsewhere
specified or included; residual products of the
chemical or allied industries, not elsewhere
specified or included: ... Nonrefractory mortars
and concretes ... Other.
Goods classifiable under subheading 3824.50.0050 receive duty-free treatment.
ISSUE:
Whether the mixtures are classifiable as nonrefractory
surfacing preparations in subheading 3214.90.5000, HTSUS, or
nonrefractory mortars and concretes in subheading 3824.50.0050,
HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS 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.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the EN should always be consulted. See T.D. 89-80, published in
the Federal Register August 23, 1989 (54 FR 35127, 35128).
There is no evidence that the mixtures have refractory
capabilities and meet the definition of refractory found in
Additional U.S. Note 2 to Chapter 69, HTSUS (see HQ 956145 dated
July 29, 1994, applying that definition of refractory to Chapter
38, HTSUS). Therefore, for purposes of this ruling, we assume
the products to be nonrefractory. Also, the mixtures are not
cements classifiable under heading 2523, HTSUS (see Note 1,
Chapter 25, HTSUS, and EN 25.23; the mixing of sand and/or gravel
with the portland cement results in processing "beyond that
mentioned in ... heading [2523]"). (In this latter regard, see
Webster's New World Dictionary, 3rd Coll. Ed. (1988) cement "1 a)
a powdered substance made of burned lime and clay, mixed with
water and sand to make mortar or with water, sand, and gravel to
make concrete"; see also, HQ 957709 dated January 17, 1996, in
which the treatment of mortar and concrete versus cement under
the HTSUS is stated to follow this distinction.)
The mixtures under consideration are, for purposes of the
competing tariff provisions, not unlike those considered in HQs
086773 dated December 24, 1990, and 089307 dated October 31,
1991. In HQ 086773 we held that mortars and grouts (grouts are
kinds of mortars) consisting of mixtures of sand, cement, and
additives (fibers, accelerators, polymer, and pigment) were
classifiable as nonrefractory mortars and concretes, other in
subheading 3823.50.0050, HTSUS (the predecessor to subheading
3824.50.0050, HTSUS). We thoroughly considered the applicability
of the provision for nonrefractory surfacing preparations for
facades, indoor walls, floors, ceilings or the like in heading
3214, HTSUS, but, on the basis of the EN for that heading,
concluded it to be inapplicable.
EN 32.14 provides that the covered nonrefractory surfacing
preparations include (in pertinent part):
(1) Powdered preparations consisting of equal parts of
plaster and sand with plasticisers.
(2) Preparations in powder form based on quartz and cement
with small quantities of added plasticisers, used for
instance, after adding water, for setting wall or floor
tiles.
As in HQ 086773, the mixtures in this case do not contain
plasticisers. Further, the mixtures do not meet the descriptions
in (1) and (2) above, and they do meet the common and commercial
meaning of mortar (see Encyclopedia Americana, International Ed.
(1980), vol. 19, 477 mortar; Webster's New World Dictionary, 3rd
Coll. Ed. (1988), mortar; and HQ 086773).
HQ 089307 followed HQ 086773 in holding mixtures similar to
those in this case, i.e., grouts and mortars, consisting
primarily of sand and cement, but also containing polymer and
cellulose additives, classifiable as nonrefractory mortars and
concretes, other, in subheading 3823.50.0050, HTSUS (the
predecessor to subheading 3824.50.0050, HTSUS). HQ 089307 noted
that the goods which were the subject of HQ 086773 had been found
by the Court of International Trade, pursuant to a Stipulated
Judgement on Agreed Statement of Facts (Mapei Canada, Ltd. v.
United States, 15 CIT 696 (1991)), to be classifiable under
subheading 3823.50.00, HTSUS.
Accordingly, we conclude that the mixtures are classifiable
as nonrefractory mortars, other, in subheading 3824.50.0050,
HTSUS.
HOLDING:
The mixtures are classifiable under the provision for
nonrefractory mortars and concretes in subheading 3824.50.0050,
HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division