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