CLA-2 RR:CR:GC 956456 PH
Mr. Francis J. Kojima
American Customs Brokerage Co., Inc.
Post Office Box 261
Honolulu, Hawaii 96809
RE: Cement; gray portland; white portland; language of commerce;
Nylos Trading Company v. United States, 37 CCPA 71 (1949); EN
25.23; HQ 952895
Dear Mr. Kojima:
This is in reference to your request to Customs in New York,
New York, dated July 14, 1993, as modified in your letter of
October 20, 1993, on behalf of Mr. Albert Lo, for a ruling as to
the tariff classification under the Harmonized Tariff Schedule of
the United States (HTSUS) of various cements. Your letters were
referred to this office for reply. We regret the extended delay
in responding to your request.
FACTS:
The merchandise under consideration consists of five brands
of cement, "Jade", "Tiga Roda", "Asano", "Emerald", and "Golden
Eagle". Jade cement is described as portland pulverized fuel ash
cement manufactured in Hong Kong; Tiga Roda cement is described
as ordinary portland cement type 1, portland white cement, and
oil well cement, each manufactured in Indonesia; Asano cement is
described as white cement manufactured in Japan for which the
manufacturing process is similar to ordinary portland cement
except for care taken to obtain a pure whiteness; Emerald cement
is described as portland cement with additives of not more than
1%; and Golden Eagle cement is described as portland pulverized
fuel ash cement.
Samples were provided of the Jade, Asano, Emerald, and
Golden Eagle cements. In the case of the three types of Tiga
Roda cement, only a sample of the white portland cement was
provided. The samples were analyzed by a Customs laboratory.
According to the laboratory analysis, the Jade, Emerald, and
Golden Eagle samples are chiefly gray portland cement and the
Tiga Roda and Asano samples are chiefly white portland cement.
The subheadings under consideration are as follows:
2523.21.00 Portland cement, aluminous cement, slag cement,
supersulfate cement and similar hydraulic cements,
whether or not colored or in the form of clinkers:
... Portland cement: White cement, whether or not
artificially colored.
The 1998 general column one rate of duty for goods classifiable
under this provision is 4 cents per ton, including the weight of
the container.
2523.29.00 Portland cement, aluminous cement, slag cement,
supersulfate cement and similar hydraulic cements,
whether or not colored or in the form of clinkers:
... Portland cement: ... Other.
Goods classifiable under subheading 2523.29.00 receive duty-free
treatment.
ISSUE:
Whether the cements are classifiable as white portland
cement in subheading 2523.21.00, HTSUS, or other portland cement
in subheading 2523.29.00, HTSUS.
LAW AND ANALYSIS:
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 F.R. 35127, 35128).
EN 25.23 provides that:
Portland cement is obtained by firing limestone
containing in its natural state, or mixed artificially with,
a suitable proportion of clay. Other materials such as
silica, alumina or iron bearing substances may also be
added. As a result of the firing process, semi-finished
products known as clinkers are obtained. These clinkers are
subsequently ground to produce [p]ortland cement, which may
incorporate additives and accelerators to modify its
hydraulic properties. The principal types of [p]ortland
cement are normal [p]ortland cement, moderate [p]ortland
cement and white [p]ortland cement. ... For purposes of
subheadings 2523.21 and 2523.29, "[p]ortland cement" means
cement obtained by grinding [p]ortland clinker with the
possible addition of a small quantity of calcium sulphate.
... [Emphasis in original.]
In applying the competing tariff provisions to kinds of
cement, we have considered Customs laboratory analysis of samples
of the kinds of cement in the context of the commercial treatment
of cement (see Nylos Trading Company v. United States, 37 CCPA
71, 73, C.A.D. 423 (1949), "Congress is presumed to know the
language of commerce, and the object of the tariff act is to
classify substances according to the general usage and
denominations of trade[;] [t]he first and most important thing to
be ascertained in construing a tariff act with regard to an
article therein mentioned is its commercial designation"). See
HQ 952895 dated April 2, 1993, in which Customs used the
laboratory analysis of a cement product as well as commercial
standards for cement published by the American Society for
Testing and Materials (ASTM) (ASTM C 150 - 95, "Standard
Specification for Portland Cement").
We note that the technical information provided for the
cements under consideration either explicitly states that the
specifications in ASTM C 150 are met by the cement or, in those
cases in which there is no explicit reference to an ASTM
specification, they appear to meet the specifications in ASTM C
150. The Customs laboratory analysis of the cement samples is
consistent with the above. On the basis of this analysis, we
conclude that the Jade, Emerald, and Golden Eagle cements are
classified as other portland cement in subheading 2523.29.00,
HTSUS, and the Tiga Roda ("white portland cement" only) and Asano
cements are classified as white portland cement in subheading
2523.21.00, HTSUS. Because no samples were provided of the other
kinds of Tiga Roda cement, we are unable to state their
classification, although classification would be consistent with
the above reasoning.
For your information, gray portland cement and clinker from
Japan is subject to an antidumping order (see Federal Register
notices of May 10, 1991 (56 F.R. 21658) and December 20, 1996 (61
F.R. 67308)).
HOLDING:
The Jade, Emerald, and Golden Eagle cements are classified
as other portland cement in subheading 2523.29.00, HTSUS, and the
Tiga Roda ("white portland cement" only) and Asano cements are
classified as white portland cement in subheading 2523.21.00,
HTSUS. In the absence of samples, no classification may be
provided for the Tiga Roda cements denominated "ordinary portland
cement type 1" and "oil well cement".
Sincerely,
John Durant, Director
Commercial Rulings Division