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HQ 956456




April 30, 1998

CLA-2 RR:CR:GC 956456 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2523.21.00; 2523.29.00

Mr. Francis J. Kojima
American Customs Brokerage Co., Inc.
Post Office Box 261
Honolulu, Hawaii 96809

RE: Cement; gray portland; white portland; language of commerce; Nylos Trading Company v. United States, 37 CCPA 71 (1949); EN 25.23; HQ 952895

Dear Mr. Kojima:

This is in reference to your request to Customs in New York, New York, dated July 14, 1993, as modified in your letter of October 20, 1993, on behalf of Mr. Albert Lo, for a ruling as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of various cements. Your letters were referred to this office for reply. We regret the extended delay in responding to your request.

FACTS:

The merchandise under consideration consists of five brands of cement, "Jade", "Tiga Roda", "Asano", "Emerald", and "Golden Eagle". Jade cement is described as portland pulverized fuel ash cement manufactured in Hong Kong; Tiga Roda cement is described as ordinary portland cement type 1, portland white cement, and oil well cement, each manufactured in Indonesia; Asano cement is described as white cement manufactured in Japan for which the manufacturing process is similar to ordinary portland cement except for care taken to obtain a pure whiteness; Emerald cement is described as portland cement with additives of not more than 1%; and Golden Eagle cement is described as portland pulverized fuel ash cement.

Samples were provided of the Jade, Asano, Emerald, and Golden Eagle cements. In the case of the three types of Tiga Roda cement, only a sample of the white portland cement was provided. The samples were analyzed by a Customs laboratory. According to the laboratory analysis, the Jade, Emerald, and Golden Eagle samples are chiefly gray portland cement and the Tiga Roda and Asano samples are chiefly white portland cement.

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.

ISSUE:

Whether the cements are classifiable as white portland cement in subheading 2523.21.00, HTSUS, or other portland cement in subheading 2523.29.00, 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 samples of the kinds of cement 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").

We note that the technical information provided for the cements under consideration either explicitly states that the specifications in ASTM C 150 are met by the cement or, in those cases in which there is no explicit reference to an ASTM specification, they appear to meet the specifications in ASTM C 150. The Customs laboratory analysis of the cement samples is consistent with the above. On the basis of this analysis, we conclude that the Jade, Emerald, and Golden Eagle cements are classified as other portland cement in subheading 2523.29.00, HTSUS, and the Tiga Roda ("white portland cement" only) and Asano cements are classified as white portland cement in subheading 2523.21.00, HTSUS. Because no samples were provided of the other kinds of Tiga Roda cement, we are unable to state their classification, although classification would be consistent with the above reasoning.

For your information, gray portland cement and clinker from Japan is subject to an antidumping order (see Federal Register notices of May 10, 1991 (56 F.R. 21658) and December 20, 1996 (61 F.R. 67308)).

HOLDING:

The Jade, Emerald, and Golden Eagle cements are classified as other portland cement in subheading 2523.29.00, HTSUS, and the Tiga Roda ("white portland cement" only) and Asano cements are classified as white portland cement in subheading 2523.21.00, HTSUS. In the absence of samples, no classification may be provided for the Tiga Roda cements denominated "ordinary portland cement type 1" and "oil well cement".

Sincerely,

John Durant, Director
Commercial Rulings Division

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