CLA-2 RR:CR:GC 957955 PH
Mr. Anthony A. Cerone
IDC - Group, Inc.
4211 Van Kirk Street
Philadelphia, Pennsylvania 19135
RE: Cement; gray portland; white portland; other hydraulic
cements; language of commerce; Nylos Trading Company v. United
States, 37 CCPA 71 (1949); EN 25.23; HQs 952895; 955455
Dear Mr. Cerone:
This is in reference to your request to Customs in New York,
New York, dated June 2, 1994, for a ruling as to the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of a cement product. Your letter was referred to
this office for reply. We regret the extended delay in
responding to your request.
FACTS:
The merchandise under consideration consists cement stated
to be imported from the Ukraine. A sample was provided. The
sample was analyzed by Customs laboratory. According to the
laboratory analysis, the sample, described as a fine gray powder,
is gray portland cement (ground clinker plus additives).
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.
2523.90.00 Portland cement, aluminous cement, slag cement,
supersulfate cement and similar hydraulic cements,
whether or not colored or in the form of clinkers:
... Other hydraulic cements.
Goods classifiable under subheading 2523.90.00 receive duty-free
treatment.
ISSUE:
Whether the cement is classifiable as white portland cement
in subheading 2523.21.00, HTSUS, other portland cement in
subheading 2523.29.00, HTSUS, or other hydraulic cement in
subheading 2523.90.00, 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 cement
samples 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") in the classification of cement. See also HQ 954018
dated September 23, 1993, as revised by HQ 955455 dated April 26,
1996, in which ASTM specifications were also relied upon in
ruling on the classification of cement as portland cement and not
other hydraulic cement.
We note that the technical information you provided with
your letter and the specifications found in Customs analysis of
the sample are generally consistent with the ASTM specifications
for portland cement. The technical information you provided
lists a high ferric oxide content for the cement (Customs
laboratory analysis confirmed this high ferric oxide content),
precluding classification as white portland cement (see The
Encyclopedia Americana, International Ed. (1980), Vol. 6, 155
cement, "[w]hite portland cement is made for special
architectural uses and differs from regular portland cement
principally in having a low content of ferric oxide" (at 158)).
On the basis of the foregoing, and on the basis of Customs
laboratory analysis of the cement, we conclude that the cement is
classified as other portland cement in subheading 2523.29.00,
HTSUS.
HOLDING:
The cement is classified as other portland cement in
subheading 2523.29.00, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division