CLA-2 RR:TC:FC 957709 K

Stephen S. Spraitzar, Esq.
Law Office of George R. Tuttle
Three Embarcadero Center, Suite 116C
San Francisco, California 94111

RE: Request for Reconsideration of New York Ruling Letter (NYRL) 897893; BVM-51 Mixtures

Dear Sir:

In response to your request of March 10, 1994, on behalf of your client, SIGRI Great Lakes Carbon Corporation, the Customs Service issued NYRL 897893, dated August 12, 1994, concerning the tariff classification of a mixture known as BMV-51 (herein after referred to as BVM-51). In your letter of September 9, 1994, you requested a reconsideration of that ruling. Additional submissions were submitted on April 28 and July 21, 1995. A meeting was held at Headquarters on November 9, and a further submission was submitted dated December 29, 1995. Other correspondence concerned protests that were initiated after the request for reconsideration involving identical merchandise. The pending protests should be decided on the basis of our response which follows.


NYRL 897893 held that the mixtures, known as BVM-51, were classified in subheading 3823.90.5050, Harmonized Tariff Schedule of the United States (HTSUS) (1994) which provides for 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: other. Subheading 3823.90.5050, HTSUS (1994) has been redesignated as subheading 3823.90.9050, HTSUS (1995), with duty at the 1995 general rate of 5 percent ad valorem.

It is your position that the mixtures are classified as nonrefractory mortars and concretes, in subheading 3823.5000, HTSUS ( not redesignated in 1995), with a 1995 free rate of duty.

NYRL 897893 did not describe the composition of BVM-51 mixtures and we assume that the composition is the same as described in your letter of September 9, 1994. The composition is as follows:

Hardener 1,3-Propanediamin, N-(3aninopropyl) 1,3-Propanediamin, (N-cyclohexyl Resin Xylene 1, 3,5-Trioxane Epoxidresin, Bisphenol (A) Pre-Mixed Solids-- Graphite, Iron, Coaltar Pitch, and Coaltar Oil. Weight of Components-- Hardener 1.11% Resin 5.56% Pre-Mixed Solids 93.33%

The mixtures are stated to be used to hold in place the collector bar in a specific slot in the carbon cathode block of an electrical furnace and to make a good contact between the collector bar and the cathode block. ISSUE:

The issue is whether the mixtures as described above are mortars and concretes and, therefore, classified as nonrefractory mortars and concretes.


The inquirer cites Headquarters Ruling Letters (HRL) 089307, dated October 31, 1991, and 086773, dated December 24, 1990, and various dictionary definitions of the terms "concrete" and "mortar", noting a broad definition for mortar as "any of various materials or compounds for bonding together bricks, stones, etc.". We have considered these positions and conclude that the mixtures as described above are not "mortars" or "concretes", and thus, not classified as claimed in subheading 3823.5000, HTSUS.

"Mortar" is defined in Hawley's Twelfth Edition, Condensed Chemical Dictionary as a type of adhesive or bonding agent that may be either organic or inorganic, soft and workable when fresh but sets to a hard, infusible solid on standing, either by hydraulic action or by chemical. The chief ingredients of inorganic mortars are cement, lime, silica, sulfur, and sodium or potassium silicate.

"Concrete" is also defined in Hawley's Twelfth Edition as a conglomerate of gravel, pebbles, sand, broken stone, and blast-furnace slag or cinders, termed the aggregate, imbedded in a matrix of either mortar or cement.

The definitions cited above are similar to the definitions for the terms "mortar" and "concrete" that were cited in the submission of September 9, 1994. However, BVM-51 consists largely of graphite and iron (80 percent), and does not contain the ingredients found in mortars and concretes as these terms are defined above. In the submission dated December 29, 1995, Norton & Ellis, Inc., v. United States, 52 Cust. Ct. 76 (1964), was cited. This case concerned the classification under the Tariff Act of 1930, of adhesive material containing methyl alcohol used to cement wooden flooring to a concrete floor. The court concluded that the adhesive was classified as other cements, not specially provided for, in paragraph 205(d). We note that other specific cements were provided for in paragraph 205(b) such as Portland and other hydraulic cements.

Other cement not specially provided for under paragraph 205(d), Tariff Act of 1930, was converted into the Tariff Schedules of the United States (TSUS) (1963), Schedule 4, Chemicals and Related Products, under item 494.60, TSUS, and dental cements was specifically provided for in item 495.15, TSUS . Concrete mixtures, which may have been classified in paragraph 205(d), were specifically provided for in the conversion, in Schedule 5, Nonmetallic Minerals and Products, under items 511.21 and 511.25, TSUS, and hydraulic cements were provided for in items 511.11 and 511.14, TSUS. The headnote to Subpart A, Schedule 5, TSUS, defined the terms "cement" and "concrete" as follows; "the term `cement' means cementing materials without added sand, gravel, or other aggregate" and "the term`concrete' means a composite of cementing materials of mineral origin with added mineral aggregate such as sand, crushed stone, or gravel". The definition for concrete in the former TSUS contains similar ingredients as in the definitions for the terms "mortar" and "concrete" as defined in Hawley's Condensed Chemical Dictionary. The merchandise described in the cited court case does not contain the same ingredients as described in your submissions, and as noted above, there was a change in the tariff laws. The Harmonized Tariff Schedule of the United States continues those changes for this merchandise and specifically provides for mixtures of "mortars" and "concretes" as those terms were defined in the TSUS, and as defined in Hawley's Condensed Chemical Dictionary.


The BVM-51 mixtures (and/or BMV-51 mixtures) as described above are classified in subheading 3823.90.9050, HTSUS (1995).

NYRL 897893, dated August 12, 1994, is affirmed.


John Durant, Director
Tariff Classification Appeals Division