CLA-2 RR:CR:GC 965966 AML
Mr. Larry Archuleta
Customs Compliance Officer
Brown, Alcantar & Brown, Inc.
9630 Plaza Circle
El Paso, Texas 79927
RE: Dry concrete mix product
Dear Mr. Archuleta:
This is in reference to your request, dated October 17, 2001, to Customs, El Paso, and supplemental submission dated April 25, 2002, to Customs in New York, New York, on behalf of Rio Grande Materials, 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 letters were referred to this office for reply. A sample and technical information were provided for our consideration.
FACTS:
You describe the merchandise in your October 2001 submission as “nonrefractory concrete dry mix” consisting of 55% aggregate (consisting of limestone) and 45% cement. In that submission, you state that the use of the product is “concrete fabrication for general use such as sidewalks, gardens, etc.” and that “other additives of different proportions, sand, water, are added according to needs or uses.” You allege, citing Headquarters Ruling Letters (HQs) 960014, dated May 3, 1998 and 955455, dated April 26, 1996, that a ratio of three parts aggregate to one part cement is needed for such mixtures to be considered to be nonrefractory concrete or mortar. You conclude with the suggestion that the mix is classifiable under either heading 2523, HTSUS, which provides for cements, or under heading 3824, HTSUS, which provides for nonrefractory mortars and concretes.
Via letter dated March 27, 2002, Customs returned your letter to you and requested that you provide a sample of the mix and clarify conflicting statements in the October 2001 letter concerning the percentages of the constituent substances in the mix.
Under a cover letter dated April 25, 2002, you submitted a sample of the mix and stated that the product consists of 55% aggregate and 45% (Gray Portland) cement (type II, ASTM C-150).
ISSUE:
Whether the mixture is classifiable as other Portland cement under subheading 2523.29.00, HTSUS; other hydraulic cement under subheading 2523.90.00, HTSUS; nonrefractory mortars and concretes under subheading 3824.50.00, HTSUS; or as artificial (i.e., agglomerated) stone under subheading 6802.99, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs), 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).
The HTSUS provisions under consideration are as follows:
2523 Portland cement, aluminous cement, slag cement, supersulfate cement and similar hydraulic cements, whether or not colored or in the form of clinkers:
Portland cement:
2523.29.00 Other.
2523.90.00 Other hydraulic cements.
* * *
3824 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:
3824.50.00 Nonrefractory mortars and concretes.
* * *
6802 Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules,
chippings and powder, of natural stone (including slate):
Other:
6802.99.00 Other stone.
The Customs Laboratory analyzed the sample provided. Customs Laboratory Report No. NY20020718, dated August 8, 2002, describes the sample of the merchandise as consisting of “approximately 35% hydraulic cement (Gray Type 2 Portland Cement) and 65% aggregate.” The report concludes that the sample “is not a refractory mortar or concrete.”
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 mixture under consideration, aggregate has been combined with the cement. The proportion of aggregate to cement is more than 2:1 (cf. HQ 954018 dated September 23, 1993, as revised by HQ 955455 dated April 26, 1996, where 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)).
In HQ 960014, above, we cited the following definitions is settling a similar question:
The addition of this much aggregate to the cement results in a mortar or concrete. In regard to mortars, see The New Encyclopedia Britannica, Macropaedia (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 mixture under consideration meet the above definitions and specifications for mortar or concrete.
It is well-settled that 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").
In HQ 960014 above, we analyzed the meanings of the terms employed in heading 3824. We stated that:
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 mixture 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. . . 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.
In cases such as this, where a party submits an outside analysis or report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the outside report. Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently classify products according their make up, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports that may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the outside laboratory is the same merchandise that was imported into the U.S. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise.
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. The mixture will be so classified.
We note that products from Mexico and Japan containing certain percentages of gray Portland cements are subject to antidumping duties. The Customs Service has been designated to administer the HTSUS. Therefore, the classification of imported merchandise is a matter properly determined by this agency. The determination of whether specific merchandise is subject to antidumping duties is within the purview of the International Trade Administration (“ITA”), U.S. Department of Commerce. The Court of International Trade has stated:
The Court distinguishes between the authority of the Customs
Service to classify according to tariff classifications (19 USC § 1500) and the power of the agencies administering the antidumping law to determine a class or kind of merchandise. The determinations under the antidumping law may properly result in the creation of classes which do not correspond to classification found in the tariff schedules or may define or modify a known classification in a manner not contemplated or desired by the Customs Service.
Royal Business Machines, Inc., et al. v. U.S., 1 CIT 80, 87 (1980), 507 F.Supp. 1007, aff'd, 669 F.2d 692 (1982). Thus, the Commerce Department's antidumping scope determination applies to the merchandise named in that determination regardless of where Customs classifies merchandise.
HOLDING:
The subject mixture is classifiable as nonrefractory mortar and concrete in subheading 3824.50.0050, HTSUS.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division