CLA-2 CO:R:C:F 952895 ALS
District Director of Customs
9 North Grand Ave.
Nogales, AZ 85621
RE: Internal Advice Request 70/92 Regarding the Classification of
Portland Cement from Mexico
Dear Mr. Lawrence:
This request for internal advice was initiated by counsel for
the importer and concerns the classification of a product which was
classified by your office as Portland cement. The importer
disagrees with that classification.
FACTS:
The product under consideration is a cement which was invoiced
as plastic cement and classified as gray Portland cement in
subheading 2523.29.0000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Counsel disagrees with that
classification and suggests several alternatives subheadings.
ISSUE:
What is the classification of the cement product under
consideration?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI
1 provides that the classification is determined first in - 2 -
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.
In considering the classification of the subject product we
note that counsel suggests several alternative subheadings.
Counsel suggests that the product should be classified as
nonrefractory mortar in subheading 3823.50.00, HTSUSA, or as
surface preparation in subheading 3214.10.00, HTSUSA, or as other
hydraulic cement in 2523.90.00, HTSUSA. In considering these
subheadings we concluded that they do not apply to the subject
product. We noted that the product does not contain the added sand
which would justify classification as a mortar in subheading
3823.50.00, HTSUSA. It is not a surface preparation in subheading
3214.10.00, HTSUSA, because it is not principally used in this
manner and because it is more specifically described as a Portland
cement in subheading 2523.29.00, HTSUSA. For the same reason it
is not classifiable as hydraulic cement.
We noted that the composition of the merchandise does not
conform to the descriptions of any of the items discussed in the
Explanatory Notes (EN) to Heading 3214 which represents the view
of the international classification experts. The cementitious
material is Portland cement, not plastic resin material. It is
not a resin cement. The plasticizers within this product are
ancillary and do not contribute to its cementitious properties.
Analysis of the product by the Customs Laboratory in New
Orleans confirmed that the product conforms to the unique chemical
formula of a Portland cement. X-ray diffraction also confirmed
that product to be a Portland cement. Counsel disagrees with the
findings of the laboratory and suggests that more detailed
laboratory analysis is required. Counsel states that the
laboratory did not perform the full battery of tests required by
the ASTM C150 Standard before the product can be considered
Portland cement. Counsel notes that while the product is made from
the same clinker as Type II Portland cement, the addition of
limestone, other minerals and proprietary air-entrainment additives
added during the grinding process change it to a plastic cement.
Counsel states that the product does not meet the above standard,
that it would be commercially unacceptable as Portland cement, and
that the mill sheets prove it does not meet the specifications for
certain types of Portland cement.
- 3 -
We consulted with the Customs laboratory at Headquarters. It
was noted that the analysis performed by our New Orleans Customs
laboratory showed that the imported product has a profile which is
essentially identical to that of Portland cement. The laboratory
noted that after the cement has been allowed to set it contains
both calcite and portlandite, which are the characteristic of
Portland cements. Technical review of the importer's mill sheets
shows that, except for the slight loss of ignition, the product
meets all the specification requirements for a Type IIA Portland
cement. In regard to the loss of ignition, it is noted that ASTM
Standard C465 which indicates that: "the cement produced for
evaluation purposes with the processing addition shall comply with
specifications C150 or C595 except that it contains the addition
under test." Thus, the product must meet the specifications of
ASTM Standard C150 prior to the addition of any additives which are
introduced into the cement when the cement clinkers are ground to
the final powder form. The addition of a plasticizing additive,
e.g. calcium carbonate, could cause the referenced loss in ignition
value. Also, the reduction of calcium carbonate to calcium oxide
during ignition would explain the loss of weight.
The product has the chief characteristics and essential
character of Portland cement. These include its composition as
verified by x-ray analysis, its physical characteristic including
its ability to set underwater and the materials it produces during
the setting process. The mill sheets indicate that the product
meets the air entrainment test for Type IIA Portland cement.
Explanatory Note 25.23 to the Harmonized System which represents
the opinion of the tariff classification experts at the
international level describes the process in which Portland cement
is produced. It specifies that it 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. It notes that
the firing process produces semi-finished products known as
clinkers which are subsequently ground to produce Portland cement,
which may incorporate additives and accelerators to modify its
hydraulic properties.
Based on a comparison of the product's specifications to the
ASTM requirements for Type IIA Portland cement, and its essential
characteristics, and considering EN 2523, we have concluded that
the product is Portland cement.
- 4 -
HOLDING:
A cement product which meets the EN description for Portland
cement and the ASTM requirements for Type IIA Portland cement is
Portland cement and is classifiable in subheading 2523.29.0000,
HTSUSA. Such product is subject to a free general rate of duty.
Such product from Mexico, however, may be subject to antidumping
and countervailing duties.
Sincerely,
John Durant, Director
Commercial Rulings Division