CLA-2 CO:R:C:M 955819 KCC
District Director
U.S. Customs Service
511 Broadway
Room 0198
Portland, Oregon 97209
RE: Protest 2904-93-100060; Ferrosilicon; duty rate based on
percentage of silicon; laboratory report
Dear District Director:
This is in regards to Protest 2904-93-100060, which pertains
to a dispute over Customs analysis of the amount of silicon content
in a shipment of ferrosilicon from Kazakhstan.
FACTS:
On April 14, 1992, a shipment of ferrosilicon from Kazakhstan
was entered under subheading 7202.29.00, HTSUS, which provides for
"Ferroalloys...Ferrosilicon...Other...." At that time, products
from Kazakhstan were dutiable at the Column 2 rate of 4.4 cents/kg
on the silicon content. Customs laboratory report #8-92-20814-
001, dated August 3, 1992, found that the silicon content of the
ferrosilicon shipment was 48.4% by weight. Therefore, the entry
of the ferrosilicon shipment was liquidated on December 11, 1992,
under subheading 7202.29.00, HTSUS, with duty assessed at 4.4
cents/kg on the silicon content of 48.4%.
In a protest timely filed on March 10, 1993, the protestant
contends that the silicon percentage by weight is only 47%. As
evidence, the protestant has submitted a laboratory report from
Andrew S. McCreath & Son, Inc., dated May 11, 1992, which states
that a sample received from the protestant and identified as "Ferro
Silicon, Grade 45% Si" contained 47.05% silicon.
ISSUE:
What is the silicon percentage by weight of the ferrosilicon
shipment?
LAW AND ANALYSIS:
In cases such as this, where the protestant submits a
laboratory report that differs from the Customs laboratory report,
the Customs laboratory report cannot be disregarded and, therefore,
takes precedence over the other report. See, Customs Directive 099
3820-002 dated May 4, 1992. In administering the HTSUS, Customs
must be consistent while classifying the same type of merchandise
entering the U.S. In order to consistently determine the
percentage of a product by weight, the same laboratory analysis
must be used throughout Customs. Customs cannot rely on reports
which may or may not utilize different testing methods and still
remain consistent in its tariff classification. Additionally,
Customs does not have any evidence that the merchandise tested by
the other laboratory is the same merchandise that was imported into
the U.S. Customs must rely on its own laboratory analysis when
determining the proper tariff classification.
Therefore, the percentage of silicon in the ferrosilicon
shipment is 48.4% as determined by Customs laboratory report #8-
92-20814-001.
HOLDING:
The duty of ferrosilicon is based on the silicon content of
48.4% by weight as determined by Customs laboratory report #8-92-
20814-001.
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, this decision should be
mailed, with the Customs Form 19, by your office to the protestant
no later than 60 days from the date of this letter. Any
reliquidation of the entry in accordance with the decision must be
accomplished prior to mailing of the decision. Sixty days from the
date of the decision the Office of Regulations and Rulings will
take steps to make the decision available to Customs personnel via
the Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director