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HQ 957957

May 1, 1998

CLA-2 RR:CR:GC 957957 PH


TARIFF NO.: 2523.21.00; 2523.29.00; 2523.90.00; 3824.50.0050

Mr. Enrique G. Meyer
Dr. Sepulveda 88 Col. Los Doctores
Monterrey, Nuevo Leon
Mexico 64710

RE: Cement; white portland; gray portland; masonry cement; nonrefractory; mortar; crushed limestone; hydrated lime; additives; refractory; language of commerce; Nippon Kogaku, Inc. v. United States, 69 CCPA 89 (1982); Nylos Trading Company v. United States, 37 CCPA 71 (1949); U.S. Additional Note 2, Chapter 69; EN 25.23; HQs 086773; 089307; 954018; 955455; 956145

Dear Mr. Meyer:

This is in reference to your request to Customs in New York, New York, dated August 26, 1994, for a ruling as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two products containing cement. Your letter was referred to this office for reply. We regret the extended delay in responding to your request.


The merchandise under consideration consists of 2 different mixtures stated to contain portland cement. "Power Coat" is stated to be a cement-based colored stucco containing crushed limestone and white portland cement in a ratio of 3.5:1, as well as hydrated lime (7%, and small amounts of pigments and fibers. "Ultrabond" is stated to be a thin-set mortar for installing tile and marble containing crushed limestone and white or gray portland cement in a ratio of approximately 2.3:1, as well as a small amount of cellulose.

Samples of the merchandise were provided. The samples were analyzed by Customs laboratory. According to the laboratory analysis, the Power Coat sample, described as a buff colored fine powder, is mixture of limestone, portland cement, hydrated lime, and fibers. The Ultrabond sample, described as a fine white powder, is a mixture of limestone, white portland cement, and cellulosic fibers. The proportions of the ingredients found in each sample were substantively the same as those stated above.

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.

3824.50.0050 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.


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 3824.50.0050, HTSUS.


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 FR 35127, 35128).

There is no evidence that the mixtures have refractory capabilities and 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, for purposes of this ruling, we assume the products to be nonrefractory.

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 HQ 954018 dated September 23, 1993, we held that a mixture containing 75% portland cement and 25% calcium carbonate (limestone) was classifiable as portland cement in subheading 2523.29.00, HTSUS, on the basis that the limestone in that amount was an additive which did not negate the identity of the mixture as portland cement. HQ 954018 was revised by HQ 955455 dated April 26, 1996, to provide that the mixture was classifiable as other hydraulic cement in subheading 2523.90.00, HTSUS.

This case is distinguished from HQ 954018, as revised by HQ 955455. In this case, there is less than half as much cement as limestone in each mixture. In HQ 954018, the proportions were the opposite; the ratio of cement to limestone was 3:1. 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 crushed limestone 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 limestone in the quantities involved with the white or gray portland cement results in processing "beyond that mentioned in ... heading [2523]" (see above)). The addition of this much crushed limestone to the cement results in a mortar. (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 ... The paste may vary from all cement to all lime. Cement-rich mortars are strong but difficult to work ... Masonry cements containing ground limestone blended with cement can produce a workable mortar." (at 588-589, emphasis added). See also, The Encyclopedia Americana, International Ed. (1980), vol. 19, 477, Mortar, and American Society for Testing and Materials (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.)

The mixtures under consideration meet the above definitions and specifications for masonry cements (mortar) (in the case of the Power Coat mixture, the ratio of limestone to cement is outside the standard ASTM specification (above); however, according to both the Encyclopedia Britannica and Encyclopedia Americana references above, lime may be included with the cement in the ratio; with the hydrated lime in the Power Coat mixture, the definitions and specifications are met).

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" 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 are mortars. Nonrefractory mortars 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 cements classified in that subheading. Accordingly, on the basis of the Customs laboratory analysis of the mixtures and the above authorities, we conclude that the mixtures are classified in subheading 3824.50,00, HTSUS, as nonrefractory mortars. We have so held in the past in regard to mortars and grouts (grouts are kinds of mortars) similar to those under consideration (see, e.g., HQ 086773 dated December 24, 1990, and 089307 dated October 31, 1991).


The mixtures are classifiable under the provision for nonrefractory mortars and concretes in subheading 3824.50.0050, HTSUS.


HQs 954018 dated September 23, 1993, as revised by HQ 955455 dated April 26, 1996, DISTINGUISHED.


John Durant, Director
Commercial Rulings Division

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