CLA-2 CO:R:C:M 089130 AJS
District Director
U.S. Customs Service
Port of Ogdensburg
127 North Water Street
Ogdensburg, NY 13669
RE: Protest number 0712-91-000043; ferromanganese silicon;
Subheading 7202.99.50; Chapter 72, note 1(c); Subheading
7202.30.00; American Society for Testing and Materials A 701-74;
Explanatory Note 72.02.
Dear District Director:
Protest for further review number 0712-91-000043 dated
1/9/91, was filed against the classification of ferromanganese
silicon within subheading 7202.99.50, Harmonized Tariff Schedule
of the United States Annotated (HTSUSA).
FACTS:
The merchandise under protest is ferromanganese silicon. It
contains approximately 62 percent of manganese (Mn), 31 percent
of silicon (Si), and 6 percent of iron (Fe).
ISSUE:
Whether the subject ferromanganese silicon is properly
classifiable within subheading 7202.30.00, HTSUSA, which provides
for ferrosilicon manganese; or classifiable within subheading
7202.99.50, HTSUSA, which provides for other ferroalloys.
LAW AND ANALYSIS:
Heading 7202, HTSUSA, provides for ferroalloys. These are
described as "[a]lloys . . . containing by weight 4 percent or
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more of the element iron and one or more of the following: . . .
more than 30 percent of manganese . . . more than 8 percent of
silicon . . ." Chapter 72, note 1(c). The subject material
satisfies this description. Accordingly, the subject
ferromanganese silicon satisfies the terms of heading 7202,
HTSUSA, and is properly classifiable therein.
Subheading 7202.30.00, HTSUSA, provides for ferrosilicon
manganese. The protestant claims that the subject ferromanganese
silicon satisfies the terms of this subheading. This claim is
based on the fact that the subject ferromanganese silicon
contains more than 30 percent of Mn and more than 8 percent of
Si.
Since the term "ferrosilicon manganese" is not defined in
the HTSUSA, it is proper to presume that Congress intended to
apply its common and commercial meaning. Lynteq, Inc. v. United
States, No. 90-04-00175, slip op. at 8 (Ct. Int'l Trade, June 17,
1991). Common and commercial meaning may be determined by
consulting dictionaries, lexicons, scientific authorities and
other reliable sources. C.J. Tower & Sons v. United States, 69
CCPA 128, 673 F.2d 1268 (1982). It is our understanding that
ferrosilicon manganese is also known as silico-manganese. The Si
chemical requirement for silico-manganese range from 12.5 percent
to 21.0 percent. American Society for Testing and Materials
(ASTM) A 483-64 (1974). The subject ferromanganese silicon does
not satisfy this requirement. It contains approximately 31
percent Si. Accordingly, the subject ferromanganese silicon does
not satisfy the commercial meaning of ferrosilicon manganese.
Therefore, the subject ferromanganese silicon does not satisfy
the terms of subheading 7202.30.00, HTSUSA, and is not
classifiable therein.
The standard chemical requirements for ferromanganese
silicon are 63 to 66 percent Mn and 28 to 32 percent Si. ASTM A
701-74 (1974). The chemical composition of the subject material
closely resembles standard ferromanganese silicon. It contains
approximately 62 percent Mn and 31 percent Si. In our view, the
nearly identical composition of the subject material to that of
standard ferromanganese silicon requires the same classification
for each material. Ferromanganese silicon is not eo nomine
provided for within heading 7202, HTSUSA. However, it does
satisfy the terms of this heading. Subheading 7202.99.50,
HTSUSA, provides for other ferroalloys. Since the subject ferro-
manganese silicon satisfies the terms of heading 7202, HTSUSA,
but it is not provided for in any of the other subheadings of
this heading, it is properly classifiable within subheading
7202.99.50, HTSUSA.
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HOLDING:
The subject ferromanganese silicon is properly classifiable
within subheading 7202.99.50, HTSUSA, which provides for other
ferroalloys. You should deny the protest in full. A copy of
this decision should be attached to the Customs Form 19, Notice
of Action, and forwarded to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division