CLA-2 RR:CR:GC 957957 PH
Mr. Enrique G. Meyer
Cemix
Dr. Sepulveda 88 Col. Los Doctores
Monterrey, Nuevo Leon
Mexico 64710
RE: Cement; white portland; gray portland; masonry cement;
nonrefractory; mortar; crushed limestone; hydrated lime;
additives; refractory; language of commerce; Nippon Kogaku, Inc.
v. United States, 69 CCPA 89 (1982); Nylos Trading Company v.
United States, 37 CCPA 71 (1949); U.S. Additional Note 2, Chapter
69; EN 25.23; HQs 086773; 089307; 954018; 955455; 956145
Dear Mr. Meyer:
This is in reference to your request to Customs in New York,
New York, dated August 26, 1994, for a ruling as to the tariff
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of two products containing cement. 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 of 2 different
mixtures stated to contain portland cement. "Power Coat" is
stated to be a cement-based colored stucco containing crushed
limestone and white portland cement in a ratio of 3.5:1, as well
as hydrated lime (7%, and small amounts of pigments and fibers.
"Ultrabond" is stated to be a thin-set mortar for installing tile
and marble containing crushed limestone and white or gray
portland cement in a ratio of approximately 2.3:1, as well as a
small amount of cellulose.
Samples of the merchandise were provided. The samples were
analyzed by Customs laboratory. According to the laboratory
analysis, the Power Coat sample, described as a buff colored fine
powder, is mixture of limestone, portland cement, hydrated lime,
and fibers. The Ultrabond sample, described as a fine white
powder, is a mixture of limestone, white portland cement, and
cellulosic fibers. The proportions of the ingredients found in
each sample were substantively the same as those stated above.
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.
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.
ISSUE:
Whether the mixtures are classifiable as white portland
cement in subheading 2523.21.00, HTSUS, other portland cement in
subheading 2523.29.00, HTSUS, other hydraulic cement in
subheading 2523.90.00, HTSUS, or nonrefractory mortars and
concretes in subheading 3824.50.0050, 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 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.
Note 1, Chapter 25, HTSUS, provides, in pertinent part,
that:
1. Except where their context ... requires, the
headings of this chapter cover only products which are in
the crude state ... but not products which have been ...
obtained by mixing or subject to processing beyond that
mentioned in each heading.
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.
... The heading also excludes (e) [n]on-refractory mortars
and concretes (heading 38.24). [Emphasis in original.]
In HQ 954018 dated September 23, 1993, we held that a
mixture containing 75% portland cement and 25% calcium carbonate
(limestone) was classifiable as portland cement in subheading
2523.29.00, HTSUS, on the basis that the limestone in that amount
was an additive which did not negate the identity of the mixture
as portland cement. HQ 954018 was revised by HQ 955455 dated
April 26, 1996, to provide that the mixture was classifiable as
other hydraulic cement in subheading 2523.90.00, HTSUS.
This case is distinguished from HQ 954018, as revised by HQ
955455. In this case, there is less than half as much cement as
limestone in each mixture. In HQ 954018, the proportions were
the opposite; the ratio of cement to limestone was 3:1. Heading
2523 provides for only cement, of various kinds, and EN 25.23
states that the cements may have additives and accelerators, but
the heading excludes, among other things, nonrefractory mortars
and concretes. Classification under heading 2523 when crushed
limestone is added to the cement in the quantity found in this
case is precluded by Note 1 of Chapter 25, HTSUS (i.e., the
mixing of limestone in the quantities involved with the white or
gray portland cement results in processing "beyond that mentioned
in ... heading [2523]" (see above)). The addition of this much
crushed limestone to the cement results in a mortar. (See The
New Encyclopedia Britannica, Macropodia (1975), vol. 11, 586,
Masonry Construction, "Mortars are generally mixed by volume,
using one part cement paste and three parts sand aggregate ...
The paste may vary from all cement to all lime. Cement-rich
mortars are strong but difficult to work ... Masonry cements
containing ground limestone blended with cement can produce a
workable mortar." (at 588-589, emphasis added). See also, The
Encyclopedia Americana, International Ed. (1980), vol. 19, 477,
Mortar, and American Society for Testing and Materials (ASTM)
Designation C 270 - 94, "Standard Specification for Mortar for
Unit Masonry", setting standards for masonry cement (mortar) with
a ratio of aggregate of not less than 2 and 1/4 and not more than
3 times the sum of the separate volumes of cementitious
materials.)
The mixtures under consideration meet the above definitions
and specifications for masonry cements (mortar) (in the case of
the Power Coat mixture, the ratio of limestone to cement is
outside the standard ASTM specification (above); however,
according to both the Encyclopedia Britannica and Encyclopedia
Americana references above, lime may be included with the cement
in the ratio; with the hydrated lime in the Power Coat mixture,
the definitions and specifications are met).
Tariff terms are to be construed in accordance with their
common and commercial meanings which are presumed to be the same
(Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F. 2d
380 (1982); see also 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").
According to both commercial meaning (see above) and common
meaning (see, e.g. Webster's New World Dictionary, 3rd Coll. Ed.
(1988), mortar "5 ... a mixture of cement or lime with sand and
water, used between bricks or stones to bind them together in
building" and 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" (emphasis added)) the
mixtures under consideration are mortars. Nonrefractory mortars
are specifically provided for in the HTSUS, in subheading
3824.50,00, HTSUS, and EN 25.23 excludes from classification
under heading 2523 nonrefractory mortars and cements classified
in that subheading. Accordingly, on the basis of the Customs
laboratory analysis of the mixtures and the above authorities, we
conclude that the mixtures are classified in subheading
3824.50,00, HTSUS, as nonrefractory mortars. We have so held in
the past in regard to mortars and grouts (grouts are kinds of
mortars) similar to those under consideration (see, e.g., HQ
086773 dated December 24, 1990, and 089307 dated October 31,
1991).
HOLDING:
The mixtures are classifiable under the provision for
nonrefractory mortars and concretes in subheading 3824.50.0050,
HTSUS.
EFFECT ON OTHER RULINGS:
HQs 954018 dated September 23, 1993, as revised by HQ 955455
dated April 26, 1996, DISTINGUISHED.
Sincerely,
John Durant, Director
Commercial Rulings Division