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