CLA-2 RR:CR:GC 964553 JAS
Port Director of Customs
1 East Bay Street
Savannah, GA 31401
RE: Protest 1703-00-100121; Wire Cored With Alloyed Powder
Dear Port Director:
This is our decision on Protest 1703-00-100121, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of calcium silicide cored wire. The entry under protest was liquidated on June 16, 2000, and this protest timely filed on September 14, 2000.
FACTS:
The merchandise at issue consists of hollow non-alloy steel tubes, typically 15 to 16 inches in outside diameter, cored with an alloyed powder containing calcium, silicon and iron, along with minor amounts of other elements. These cored wires are used in steel-making as a means of introducing the alloys to the melt in order to impart the requisite properties to the steel. The wire is fed into the melt at a particular rate so that the amount and distribution of the powders in the molten steel can be controlled. The metal tube functions only as a container for the alloyed powders and does not enhance the product.
The merchandise was entered under a provision of heading 2850, HTSUS, for other silicides, whether or not chemically defined. Based on a Customs laboratory report on a product previously imported by the same importer, and believed to be substantially similar, the cored wire was reclassified under a provision in heading 7202, HTSUS, as other ferroalloys. Counsel for the protestant contends not only that an analysis of previously imported merchandise is insufficient basis for classifying the product at issue, but also that the methodology used by the Customs laboratory in that analysis was flawed.
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In addition, a mill analysis from the Brazilian producer, supposedly covering the protested entry, indicates that the merchandise contains less than 4 percent iron, by weight. This disqualifies it as a ferroalloy. Finally, counsel has supplied an analysis from an independent laboratory, conducted nearly a year after the date of importation, indicating that two samples tested contain 3.49 and 3.38 percent iron, by weight.
The HTSUS provisions under consideration are as follows:
2850 [s]ilicides…whether or not chemically defined, other than compounds which are also carbides of heading 2849:
Other
* * * *
Ferroalloys
7202.99.50 Other
ISSUE:
Whether the requisite percent of iron content in the merchandise, by weight, can be established.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Chapter 72, Note 1(c), HTSUS, defines Ferroalloys in part as alloys in pigs, blocks, lumps or similar primary forms containing by weight 4 percent or more of the element iron and one or more of the following: more than 10 percent of chromium, more than 30 percent of manganese, more than 3 percent of phosphorus more than 8 percent of silicon, and a total of more than 10 percent of other elements, other than carbon. The ENs on p. 1074 exclude from heading 7202 calcium silicide if it contains less than 4 percent by weight of iron. The ENs on p. 337 describe calcium silicide of heading 2850
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as very hard, grey, crystalline masses. It is used in metallurgy, for local production of hydrogen, and in the manufacture of smoke bombs. These ENs also exclude from
heading 2850 ferro-alloys and refer them to heading 72.02. Thus, aside from whether the merchandise at issue actually meets the EN description for “calcium silicide” cored wire, the more pertinent issue is whether the requisite percent by weight of iron is present for purposes of heading 7202.
Wire cored with alloy powder is considered a ferroalloy for tariff purposes if it meets the metallurgy requirements of Chapter 72, Note 1(c), HTSUS. See HQ 088637, dated April 26, 1991.The classification advanced by Customs is based on Savannah Laboratory Report 4-1999-30314-00, dated October 5, 1999. The metallurgy in that report ostensibly qualifies the sample as a ferroalloy, under Note 1(c). In this regard, methods of weighing, measuring and testing merchandise used by Customs officers and the results obtained are presumed to be correct. However, this presumption may be rebutted by showing that such methods or results are erroneous. See Consolidated Cork et al v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965). The parties agree that the sample tested was from a previous shipment of nearly identical merchandise from the same importer, with nearly the same invoice description. While an argument might be made that this is the best evidence available with respect to the composition of the merchandise at issue here, for which no sample was tested, there is some indication that the report might be flawed. The report indicates the sample contains 6.9 percent iron, 54.9 percent silicon and 39.2 percent calcium, all by weight, but identifies the sample as having “the characteristics of a ferrosilicon.” The sample is considered ternary within Chapter 72, Subheading Note 2, HTSUS, because two of the alloying elements (silicon and calcium) exceed the minimum percentage specified in Note 1(c).
Ferrosilicon, however, is binary, that is, only the silicon exceeds the specified minimum percentage. For these reasons, we conclude that the subject laboratory report is of
limited probative value in establishing the merchandise at issue as a ferroalloy. On the other hand, in a letter, dated November 28, 2000, counsel submitted an independent laboratory report on “calcium silicide” conducted on November 9, 2000, nearly one year after importation of the goods under protest. This report indicates the iron content, by weight, is below that required for a ferroalloy. Customs has in the past sampled at least one other shipment of similar merchandise from the protestant. In Customs Laboratory Report 4-97-30393-001 (1997), the iron content in the tested sample was found to be less than 4 percent by weight; thus, classification of the merchandise in subheading 2850.00.50, HTSUS, was sustained. But, counsel has not sufficiently connected the merchandise sampled on November 28, 2000, to the merchandise in this protest, so that the submitted laboratory report is of limited probative value here.
As to the protestant’s burden of proof in sustaining the heading 2850 classification, the Customs Regulations require that a protest state the nature of, and justification for, the objection set forth distinctly and specifically with respect to each decision. See 19 CFR 174.13(a)(6). In this case, protest is properly made against
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Customs decision to liquidate the entry in question under subheading 7202.99.50, HTSUS. However, discounting both the Customs laboratory report and the
November 28, 2000, report submitted by counsel, both for the reasons stated, we are left with the Brazilian mill analysis submitted with the entry under protest that shows an iron content of 3.92 percent, presumably by weight. However, we are unable to verify the testing methodology used in this analysis. Moreover, the test results are not corroborated by other credible evidence in the file. For these reasons, this report cannot be viewed as determinative. As there is no other evidence to support the claim under heading 2850, it is necessary to conclude that the requirements of 19 CFR 174.13(a) have not been met. Recognizing the significance of laboratory analysis with respect to merchandise of this type, we are taking steps to insure that future importations be more carefully sampled.
HOLDING:
Under the authority of GRI 1, the wire cored with alloy powder is provided for in heading 7202. It is classifiable in subheading 7202.99.50, HTSUS.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division