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HQ 952895

April 2, 1993

CLA-2 CO:R:C:F 952895 ALS


TARIFF NO.: 2523.29.0000

District Director of Customs
9 North Grand Ave.
Nogales, AZ 85621

RE: Internal Advice Request 70/92 Regarding the Classification of Portland Cement from Mexico

Dear Mr. Lawrence:

This request for internal advice was initiated by counsel for the importer and concerns the classification of a product which was classified by your office as Portland cement. The importer disagrees with that classification.


The product under consideration is a cement which was invoiced as plastic cement and classified as gray Portland cement in subheading 2523.29.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Counsel disagrees with that classification and suggests several alternatives subheadings.


What is the classification of the cement product under consideration?


Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in - 2 -
accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the classification of the subject product we note that counsel suggests several alternative subheadings. Counsel suggests that the product should be classified as nonrefractory mortar in subheading 3823.50.00, HTSUSA, or as surface preparation in subheading 3214.10.00, HTSUSA, or as other hydraulic cement in 2523.90.00, HTSUSA. In considering these subheadings we concluded that they do not apply to the subject product. We noted that the product does not contain the added sand which would justify classification as a mortar in subheading 3823.50.00, HTSUSA. It is not a surface preparation in subheading 3214.10.00, HTSUSA, because it is not principally used in this manner and because it is more specifically described as a Portland cement in subheading 2523.29.00, HTSUSA. For the same reason it is not classifiable as hydraulic cement.

We noted that the composition of the merchandise does not conform to the descriptions of any of the items discussed in the Explanatory Notes (EN) to Heading 3214 which represents the view of the international classification experts. The cementitious material is Portland cement, not plastic resin material. It is not a resin cement. The plasticizers within this product are ancillary and do not contribute to its cementitious properties.

Analysis of the product by the Customs Laboratory in New Orleans confirmed that the product conforms to the unique chemical formula of a Portland cement. X-ray diffraction also confirmed that product to be a Portland cement. Counsel disagrees with the findings of the laboratory and suggests that more detailed laboratory analysis is required. Counsel states that the laboratory did not perform the full battery of tests required by the ASTM C150 Standard before the product can be considered Portland cement. Counsel notes that while the product is made from the same clinker as Type II Portland cement, the addition of limestone, other minerals and proprietary air-entrainment additives added during the grinding process change it to a plastic cement. Counsel states that the product does not meet the above standard, that it would be commercially unacceptable as Portland cement, and that the mill sheets prove it does not meet the specifications for certain types of Portland cement.

We consulted with the Customs laboratory at Headquarters. It was noted that the analysis performed by our New Orleans Customs laboratory showed that the imported product has a profile which is essentially identical to that of Portland cement. The laboratory noted that after the cement has been allowed to set it contains both calcite and portlandite, which are the characteristic of Portland cements. Technical review of the importer's mill sheets shows that, except for the slight loss of ignition, the product meets all the specification requirements for a Type IIA Portland cement. In regard to the loss of ignition, it is noted that ASTM Standard C465 which indicates that: "the cement produced for evaluation purposes with the processing addition shall comply with specifications C150 or C595 except that it contains the addition under test." Thus, the product must meet the specifications of ASTM Standard C150 prior to the addition of any additives which are introduced into the cement when the cement clinkers are ground to the final powder form. The addition of a plasticizing additive, e.g. calcium carbonate, could cause the referenced loss in ignition value. Also, the reduction of calcium carbonate to calcium oxide during ignition would explain the loss of weight.

The product has the chief characteristics and essential character of Portland cement. These include its composition as verified by x-ray analysis, its physical characteristic including its ability to set underwater and the materials it produces during the setting process. The mill sheets indicate that the product meets the air entrainment test for Type IIA Portland cement. Explanatory Note 25.23 to the Harmonized System which represents the opinion of the tariff classification experts at the international level describes the process in which Portland cement is produced. It specifies that it 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. It notes that the firing process produces semi-finished products known as clinkers which are subsequently ground to produce Portland cement, which may incorporate additives and accelerators to modify its hydraulic properties.

Based on a comparison of the product's specifications to the ASTM requirements for Type IIA Portland cement, and its essential characteristics, and considering EN 2523, we have concluded that the product is Portland cement.


A cement product which meets the EN description for Portland cement and the ASTM requirements for Type IIA Portland cement is Portland cement and is classifiable in subheading 2523.29.0000, HTSUSA. Such product is subject to a free general rate of duty. Such product from Mexico, however, may be subject to antidumping and countervailing duties.


John Durant, Director
Commercial Rulings Division

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