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HQ 962556





March 30, 2000

CLA-2 RR:CR:GC 962556 MGM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3214.10.00

Port Director
U.S. Customs Service
2350 Sam Houston Pkwy E.
Ste. 1000
Houston, TX 77032

RE: Protest 5301-98-100309; Hilti™ “HVU,” “HIT,” and “HEA” resin-based anchoring cements

Dear Port Director:

This is our decision on protest 5301-98-100309, concerning your classification of the Hilti “HVU,” “HIT,” and “HEA” resin-based anchoring cements under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Hilti™ “HVU,” “HIT,” and “HEA” resin-based anchoring cements are high viscosity two-component plastic resin cements used to set threaded steel rods, internally threaded steel inserts and rebars in drilled masonry holes.

Hilti™ “HEA” is packed in two-part glass capsules of standard diameters and lengths, and contains vinylester, styrene, dibenzoyl peroxide and quartz sand. It is inserted into a hole drilled in masonry. A rod is then drilled through the glass capsule, rupturing the capsule thereby mixing the resin and hardener and forcing the cement around the rod. The cement then hardens, holding the rod in place.

Hilti™ “HVU” is packed in a “composite foil adhesive capsule” and the resin is urethane methacrylate. It is otherwise similar to Hilti™ “HEA.”

Hilti™ “HIT” resin cements are packed in two tubes joined by a common mixing nozzle for direct application of a layer of cement using a caulking gun. The caulking gun also aids in achieving the correct distribution of hardener and resin. Three different types of Hilti™ “HIT” resin cements are at issue here.

Hilti™ “HIT C-100” contains polyester, vinyl ester, styrene, quartz sand, amorphous silica, polyadipic acid ester and dibenzoyl peroxide. “HIT C-100” obtains its bonding value from bonding and keying (expanding into empty spaces in the base material then hardening so that a product is molded to the shape of the base material). The high viscosity permits use in horizontal anchoring. The vinyl ester allows cure in relatively short periods over a wide temperature range.

The Hilti™ Catalog (at p. 4-13) describes “HIT HY150.” It states “[t]he formulation of the HY 150 is based on a revolutionary hybrid mortar. The organic component is a urethane methacrylate resin which reacts with a hardener to provide a fast, dependable reaction in a wide range of temperatures. The inorganic component is Portland Cement which reacts with water to provide a stable, temperature resistant basis for the cured product. The combination of these four components provides excellent bond strength, stiffness and a rapid cure.“ Portland cement is made up of the following components: tricalcium silicate 55%, dicalcium silicate 25%, tricalcium aluminate 10%, tetracalcium aluminoferrite 8%. New Grolier Multimedia Encyclopedia, 1994, “Cement and Concrete.”

Hilti™ “HIT HY20” is described in the Hilti™ Catalog (at p. 4-15) as having the same constituents as HY150. “HIT HY20” is further described as obtaining “holding values from bonding and keying. Where the wall is solid, the adhesive bonds itself to the masonry. Where voids exist, the adhesive fills the voids with a circular plug keying itself into masonry. This outstanding feature allows the HIT HY20 system to function in poor quality base material, even when the size and location of voids are unknown.”

The entries which are the subject of the protest were liquidated in August and September, 1998. A protest was timely filed November 2, 1998.

ISSUE:

Whether Hilti™ “HVU,” “HIT,” and “HEA” products are classified as glues and adhesives of heading 3506, HTSUS, or mastics of heading 3214, HTSUS?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

Upon liquidation, Hilti™ “HVU,” “HIT,” and “HEA” were classified in heading 3214, HTSUS, which provides for the following:

3214 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.

Protestant argues that the merchandise should be classified in heading 3506, HTSUS, which reads as follows:

3506 Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg.

Heading 3506 is notable in that the two clauses of this heading, despite their apparent similarity, vary substantially in scope. The first clause provides for glues and adhesives not elsewhere specified or included. Thus, it is intended to be subordinate to any other heading of the tariff which includes a subset of “prepared glues and other prepared adhesives.” The second clause of heading 3506, HTSUS, provides for glue products which are both put up for retail sale and which are 1 kg or less in mass. This second clause should be read in conjunction with Note 2, Section VI, HTSUS, which states that goods classifiable in heading 3506 by reason of being put up for retail sale are to be classified in heading 3506 and in no other heading of the tariff schedule. Accordingly, any product described by the second clause of heading 3506, HTSUS, must be classified therein. Thus heading 3506 is both a residual provision for glues and adhesives which are not put up for retail sale or which exceed 1 kg in mass and is the only permissible provision for glues and adhesives put up for retail sale so long as such merchandise does not exceed 1 kg in mass.

The McGraw-Hill Encyclopedia of Science and Technology, under the section for “adhesive,” states as follows: “[a] material capable of fastening two other materials together by means of surface attachment. The words glue, mucilage, mastic, and cement are synonymous with adhesive.” (emphasis added). However, the existence of these two distinct headings indicates a legislative intent to distinguish between mastics (of heading 3214) and adhesives (of heading 3506) for tariff purposes. This is reinforced by the Explanatory Note to heading 3506 which states “[t]he heading also excludes products having the character of mastics, fillings, etc., of heading 32.14.” EN 35.06 at 535 (emphasis in original). Accordingly, merchandise which falls within the scope of heading 3214, HTSUS, is excluded from heading 3506, HTSUS.

The Explanatory Note to heading 3214 describes glaziers’ putty, grafting putty, resin cements, caulking compounds and other mastics as preparations which “are mainly used to stop, seal or caulk cracks and, in certain cases, to bond or firmly join components together. They are distinguished from glues and other adhesives by the fact that they are applied in thick coatings or layers.” EN 32.14 (I). Thus, mastics are applied in bulk and tend to occupy more volume than adhesives. The Explanatory Note to heading 3214 also states that preparations of this heading “are usually put up in a more or less pasty form and in general they harden after application.” That is, such preparations are viscous rather than liquid. Therefore, two characteristics which differentiate goods of heading 3214 from similar goods of other headings are bulk and viscosity. An entire capsule of the HVU and HEA products are administered each time the products are used. The smallest of these capsules is 3/8” x 3-1/2” while the largest measures 1-1/4” x 12”. The HIT products are administered in significant quantities using a caulking gun. In solid base material holes are drilled then filled ½ to 2/3 full with HIT, while in hollow base materials screen tubes are filled completely with HIT then inserted into the base material. Thus, the merchandise is administered in bulk. In addition it is sufficiently viscous to hold metal fixtures in place within apertures in masonry. Accordingly, these goods qualify as merchandise of heading 3214, HTSUS.

Further, the Explanatory Notes to heading 3214 list a number of examples of merchandise falling within this heading. One such example is “[m]astics based on plastics” which are described as

(e.g., polyesters, polyurethanes, and epoxides resins) with a high added proportion (up to 80 %) of various fillers (e.g., clay, sand and other silicates, titanium dioxide, metallic powders). Some of these mastics are used after the addition of hardeners. They are used to seal certain joints, as fillers or sealants for coachwork, to repair metal objects or to bond them to other materials, etc.

EN 32.14 (I)(9). A second example is “resin mastics and cements:”

These consist of natural resins (shellac, damar, rosin) or plastics (alkyd resins, polyesters, coumarone-indene resins etc.), intermixed and usually with the addition of other materials (e.g.,...cements or any other mineral fillers). It should be noted that certain of these mastics are also covered by the types described below (e.g., those based on plastics or on rubber).

EN 32.14 (I)(3). The HEA, HVU and the HIT C-100 products are largely made of polymers and quartz sand filler and are thus similar to the described “mastics based on plastics.” HIT HY150 and HY20 are made up primarily of polymers, portland cement and hardeners. The portland cement has a high proportion of silicates and is similar to a filler. Thus the HIT HY150 and HIT HY20 products are described by both of the above provisions.

Protestant emphasizes that heading 3506, HTSUS, should be read in conjunction with Note 2, Section VI, HTSUS, which states that goods classifiable in heading 3506 by reason of being put up for retail sale are to be classified in that heading and in no other heading of the tariff schedule. Protestant argues that this note indicates that the second clause of heading 3506 encompasses those goods which are the subject of the instant protest which do not exceed a mass of 1 kg. However, in order to fall within the scope of the second clause of heading 3506, goods must be “suitable for use as glues or adhesives.”

All mastics have some tendency to adhere to certain substances, as do plaster and cement of chapter 25. However, such property does not make these products “ suitable for use as glues or adhesives” as that term is used in heading 3506. Glues and adhesives are applied in thin layers and are less viscous than mastics. As stated above, the Explanatory Note to heading 3506 explicitly excludes products “having the character of mastics” from heading 3506.

In addition, it is unclear whether all of the merchandise would qualify as being “put up for retail sale.” An article does not meet the requirement of being “put up for retail sale” if it is repackaged subsequent to importation. HQ 085206, dated February 23, 1990; HQ 088165, dated February 5, 1991. The HIT HY20 and HIT HY150 are both described as “packaged in dual refill packs which keep separate the resin and hardener components of the adhesive.” Hilti Catalog at 4-13 and 4-15. This suggests that these products are repackaged after importation.

In summary, the products at issue in this protest are applied in bulk and are viscous, thus indicating classification in heading 3214, HTSUS. Further, they are similar or identical to products specifically described in Explanatory Note 32.14 under “[m]astics based on plastics.” That these products have some adhesive function does not mandate classification in heading 3506, HTSUS. There is a clear legislative intent to separate mastics, which tend to be viscous and applied in bulk, from other adhesives.

HOLDING:

The protest should be denied. Hilti™ “HVU,” “HEA,” “HIT C-100,” “HIT HY150” and “HIT HY20” are classified in subheading 3214.10.00, HTSUS.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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