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.
FACTS:
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.
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 3824.50.00, 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. 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).
HOLDING:
The mixtures are classifiable as nonrefractory mortars and
concretes in subheading 3824.50.0050, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division