CLA-2 RR:CR:GC 960014 PH

Vincent Bowen, Esq.
White & Case
601 Thirteenth St., N.W.
Suite 600 South
Washington, DC 20005-3807

RE: Dry concrete mix; cement; white portland; gray portland; refractory; nonrefractory; mortar; gravel; sand; language of commerce; Nippon Kogaku, Inc. v. United States, 69 CCPA 89 (1982); Nylos Trading Company v. United States, 37 CCPA 71 (1949); GRI 2(a); U.S. Additional Note 2, Chapter 69; EN 25.23; HQs 086773; 089307; 954018; 955455; 956145

Dear Mr. Bowen:

This is in reference to your request dated September 9, 1996, to Customs in New York, New York, on behalf of Cementos de Chihuahua, S.A. de C.V., and Rio Grande Portland Cement Corporation, as supplemented by a letter dated November 11, 1996, requesting a ruling as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of dry concrete mixes from Mexico. Your letter was referred to this office for reply. We regret the extended delay in responding to your request.


The merchandise under consideration consists of 3 different mixtures stated to contain portland cement and aggregate. Mix #1 contains portland cement (11.5 percent), gravel, and sand; Mix #2 contains portland cement (18.2 percent) and gravel; and Mix #3 contains portland cement (23.9 percent) and sand. You state that the concrete in each of the mixtures is standard portland cement conforming to American Society for Testing and Materials (ASTM) Designation C 150, Type II. You state that Mix #1 is a finished concrete mix ready for use simply by adding water with no additional gravel, sand, or cement although, depending on the use of the concrete, small amounts of admixtures might be added with the water. Mix #2 is described as a dedicated concrete mix to which only sand and water need be added. You state that Mix #3 is a mortar ready to be used simply with the addition of water, although customers could also use it as concrete by adding gravel or crushed or broken stone.

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.

3824.50.00 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.


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 3824.50.00, HTSUS.


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. GRI 2(a) provides, in part, that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs 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 ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

Review by Customs Office of Laboratories and Scientific Services (OLSS) of the composition of the mixtures shows that the products do not have refractory capabilities and do not 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, the mixtures are not classifiable under the provision for refractory cements, mortars, or concretes of heading 3816, HTSUS.

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 the each of the mixtures under consideration, aggregate has been mixed with the cement. The proportion of aggregate to cement is more than 3:1 in each instance (compare to HQ 954018 dated September 23, 1993, as revised by HQ 955455 dated April 26, 1996, in which a mixture in which the proportions were reversed (3:1 cement to crushed limestone) was held to be classifiable under heading 2523). 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 aggregate 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 the aggregate in the quantities involved with the portland cement results in processing "beyond that mentioned in ... heading [2523]" (see above)).

The addition of this much aggregate to the cement results in a mortar or concrete. In regard to mortars, 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 ..." (at 588). See also, The Encyclopedia Americana, International Ed. (1980), vol. 19, 477, Mortar, and 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.

In regard to concretes, see Materials Handbook, 11th Ed. (1977, 208-209, Concrete, "A construction material composed of portland cement and water combined with sand, gravel, crushed stone, or other inert material ... Proportioning of the ingredients of concrete is referred to as designing the mixture[.] ... A rich mixture for columns may be in the proportion of 1 volume of cement to 1 of sand and 3 of stone, while a lean mixture for foundations may be in the proportion of 1:3:6. ..." See also, Compilation of ASTM Standard Definitions (1994), 109, "concrete - a homogeneous mixture of portland cement, aggregates, and water which may contain admixtures"; and The Encyclopedia Americana, International Ed. (1980), vol. 7, 507, Concrete, "Aggregates make up about 75% of the total mass of concrete" (at 508).

The mixtures under consideration either meet the above definitions and specifications for mortar or concrete or may do so by the addition of relatively small amounts of either cement (Mix #3 in which the ratio of aggregate to cement is 3.184:1 instead of 3:1) or sand (Mix #2 in which, according to advice from Customs OLSS, sand must be added to make the mixture practically usable as concrete; see also, above texts on concrete).

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", concrete "2 a hard, compact building material formed when a mixture of cement, sand, gravel, and water dries ...", 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 have been processed beyond cement (by the mixture with cement of sand and/or gravel) and are mortars or concretes, or have the essential character of mortars or concretes. That is, in the case of Mix #3 the mixture is of cement and sand which is the essential character of mortar (see above commercial and common meanings) and in the case of Mix #2 the mixture is of cement and aggregate (gravel) which is the essential character of concrete (see above commercial and common meanings). In each case, the proportion of aggregate is such that the mixture cannot be cement (see discussion of HQs 954018 and 955455, above). Pursuant to GRI 2)(a), incomplete mortars or concretes which have the essential character of mortars or concretes are to be classified in the provision for the completed articles

Nonrefractory mortars and concretes 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 concretes classified in that subheading. Accordingly, we conclude that the mixtures are classified in subheading 3824.50,00, HTSUS, as nonrefractory mortars and concretes. This is consistent with past rulings in regard to mortars and grouts (grouts are kinds of mortars) (see, e.g., HQ 086773 dated December 24, 1990, and 089307 dated October 31, 1991).


The mixtures are classifiable as nonrefractory mortars and concretes in subheading 3824.50.0050, HTSUS.


John Durant, Director
Commercial Rulings Division