OT: RR: CTF: CPM2: H301464 ABL
Ms. Jacqueline LeHanh GCP Applied Technologies 62 Whittemore Avenue Cambridge, MA 02140
Re: Request for Reconsideration of NY N292613; classification of Monokote MK-6/HY
Dear Ms. LeHanh:
This is in response to your letter, dated September 27, 2018, in which you request reconsideration of New York Ruling Letter (NY) N292613 (“reconsideration request”). NY N292613, issued to you May 2, 2018 by U.S. Customs and Border Protection (CBP), involves the classification Monokote MK-6/HY under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding to your reconsideration request. Having reviewed NY N292613 and determined that it is correct, we are affirming that ruling for the reasons set forth below.
The Monokote MK-6/HY at issue was described in NY N292613 as follows:
The Monokote MK-6/HY is a powdery material which you state is comprised overwhelmingly of plaster derived from natural gypsum, to which has been added small amounts of calcium carbonate, cellulose, and expanded polystyrene. From the information you provided, the Monokote MK-6/HY is mixed with water and sprayed onto structural steel, in order to provide thermal insulation in case of fire.
Furthermore, ruling request N291893, dated November 8, 2017 states, in pertinent part, the following:
More specifically, it was stated to contain 2%-5% by weight of expanded polysterene, %5-10% by weight of cellulosic fiber, 1%-10% by weight of calcium carbonate, and 85%-90% by weight of gypsum (CaS04, also known as calcium sulfate), and it was made in the United States.
CBP laboratory and Scientific Services Division examined a sample of the merchandise and noted the following in Laboratory Report NY20172006: “[t]he two mineral substances in the product (calcium sulfate and calcium carbonate) are not by themselves considered insulating materials. Therefore, in the opinion of this laboratory, although the products ultimate purpose is insulation the product is not an article of insulating mineral materials.”
In NY N292613, CBP classified the subject Monokote MK-6/HY in heading 6809, HTSUS, which provides for, “Articles of plaster or of compositions based on plaster: Other articles.” In your reconsideration request, you assert that the Monokote MK-6/HY is correctly classified in heading 6806, HTSUS, which provides for “mixtures and articles of heat-insulating, sound-insulating or sound-absorbing mineral materials.”
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (ENs) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN’s for 68.09 state in relevant part,
This heading covers articles of plaster or of plastering materials, coloured or not, such as stucco (plaster mixed with a solution of glue, and which, after moulding, often has the superficial appearance of marble), fibrous plaster (plaster reinforced with wisps of tow, etc., and generally mixed with a solution of gelatin or glue), alumed plaster (also called Keene’s cement or English cement), and similar preparations which may contain textile fibres, wood fibre, sawdust, sand, lime, slag, phosphates, etc., but in which plaster is the essential element.
These ENs also exclude… “(b) Panels, etc., agglomerated with plaster, of heading 68.06 or 68.08.”
EN 68.06 states in relevant part,
This heading also covers heat-insulating, sound-insulating or sound-absorbing mixtures of mineral materials in bulk, e.g., mixtures composed essentially of kieselguhr, siliceous fossil meals, magnesium carbonate, etc., often with added plaster, slag, powdered cork, sawdust or wood shavings, textile fibres, etc. The mineral wools described above may also form part of such mixtures which, in the mass, are used as packing materials, in the insulation of ceilings, roofs, walls, etc.
There is no dispute that the 85-90% of calcined gypsum in the instant Monokote product constitutes plaster, chemically consisting of calcium sulfate (CaS04). Yet the Monokote contains no kieselguhr, siliceous fossil meals, or magnesium carbonate; it contains no mineral wools or fibers; it also does not contain any expanded vermiculite or clays, or any other material which is classified in heading 6806, HTSUS. That plaster releases water when exposed to fire does not remove it from classification in 6809, HTSUS, let alone make it in any way akin to the heat-insulating articles of 6806.
The uses of gypsum are many and varied, however, insulation is not one of them. Furthermore, the gypsum component of the wallboard does not perform any sort of insulating function; it merely serves as the medium in which the insulating materials (e.g., vermiculite, fiberglass, etc.) are suspended, so that the wallboard as a whole may insulate. We note that this description is very similar to the boards of ENs 68.06, as above. That gypsum is not an insulating material was discussed in Headquarters’ Ruling Letter (HQ) H084048, dated July 19, 1989. Lastly, because it is a plaster-based mixture which contains no insulating articles of 6806, the merchandise cannot be classified in that heading.
For all the aforementioned reasons, we hereby affirm NY N292613. Accordingly, the subject Monokote MK-6/HY is classified in subheading 6809.90.0000, HTSUS, as Articles of plaster or of compositions based on plaster: Other articles.”
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division