Request for Further Review of Protest 3004-90-000316, dated November 29, 1990, Regarding Two Cementitious Products Used to Either Patch Broken Concrete or to Coat Concrete to Make it Waterproof

HQ 088991 December 23, 1991 CLA-2 CO:R:C:F 088991 ALS CATEGORY: Classification TARIFF NO.: 2523.90 District Director of Customs 909 First Ave. Seattle, WA. 98174 RE: Request for Further Review of Protest 3004-90-000316, dated November 29, 1990, Regarding Two Cementitious Products Used to Either Patch Broken Concrete or to Coat Concrete to Make it Waterproof Dear Mr. Holland: This ruling is on a protest filed against your decisions of August 24, 1990, in the liquidations of a series of entries filed between January 27, 1989 and July 26, 1990. FACTS: The articles under consideration are two cementitious products. One product, known as Patch 'n Plug, is designed to patch concrete. The other product, known as Ultra Plug, is designed to waterproof concrete. The protestant claims they are hydraulic cements and classifiable under subheading 2523.90, HTSUSA. The Customs laboratory found that neither product would set when mixed with water and either air dried or under water. Since they would not set it was held that they were not hydraulic cement but were "Prepared additives for cements, mortars or concretes, other" classifiable under subheading 3823.40.50, HTSUSA. ISSUE: What is the classification of product designed to patch concrete and a product designed to waterproof concrete? - 2 - LAW AND ANALYSIS: Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order. The articles under consideration were held to be cement additives based on laboratory analyses which found that the articles did not meet the requirements for hydraulic cement because they would not set. The protestant claimed and the company literature showed that one of the products was designed to be used to patch concrete and that the other product was designed to be used to waterproof concrete. In either case the products would have to set to meet the requirements for which they were designed and to be marketable for such purposes. Reanalyses by Customs laboratories confirmed the initial finding that the products did not set. Since there appeared to be a major conflict which indicated that the products did not meet the purposes for which they were designed and for which they were being marketed, as noted in their advertising literature, we obtained new samples of the products from the protestant for reanalysis. After a series of laboratory analyses following the mixing procedures detailed in the protestant's advertising literature, it was concluded that both products set and, therefore, they met the requirements for hydraulic cement in subheading 2523.90, HTSUSA. The reasons that earlier laboratory analyses did not confirm the protestant's claim that the products set and that they should be considered hydraulic cements and classifiable under the above noted subheading remains unclear. Several possibilities for this anomalous situation exist. Perhaps the samples were defective, the manufacturer's mixing instructions were not followed, the characteristics of these products differed somewhat from those of regular portland cement, etc. In any case and as previously noted, analyses of the two products by one or more Customs laboratories now confirms that they meet the requirements of subheading 2523.90, HTSUSA. The previous discrepancies in laboratory analyses are no longer pertinent. - 3 - HOLDING: The cementitious products known as Xypex Ultra Plug and Xypex Patch 'n Plug meet the requirements for hydraulic cement and are classifiable in subheading 2523.90, HTSUSA, and are subject to a free general rate of duty. Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 Notice of Action furnished the protestant. Sincerely, John Durant, Director Commercial Rulings Division