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HQ 959896

April 29, 1998

CLA-2 RR:CR:GC 959896 PH


TARIFF NO.: 3214.90.5000; 3824.50.0050

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.


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.


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.


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.


The mixtures are classifiable under the provision for nonrefractory mortars and concretes in subheading 3824.50.0050, HTSUS.


John Durant, Director
Commercial Rulings Division

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