CLA-2 CO:R:C:M 958349 MMC
Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202
RE: Protest No. 1303-94-100183; Calcium Silicon; 7202.21.10;
Chapter 72 Note 1(c), Subheading Note (2); HRL 088637, 953356
Dear Port Director:
The following is our decision regarding the request for
further review of Protest No. 1303-94-100193, which concerns the
classification of calcium silicon under the Harmonized Tariff
Schedule of the United States (HTSUS). The entries were
liquidated on March 25, 1994, and the protest was timely filed on
June 16, 1994.
FACTS:
The merchandise in question is calcium silicon. Protestant
describes the article as "calcium ferro silicon" and argues that
the calcium silicon is classifiable as a ferro silicon.
Protestant entered the articles under subheading 7202.21.10,
HTSUS, which provides for ferrosilicon containing by weight more
than 3 percent of calcium. The entries were liquidated under
subheading 7202.99.50, HTSUS, which provides for other
ferroalloys. According to the inspection certificate from the
country of exportation representative samples, drawn at random,
indicate that the shipment is composed of the following elements:
CA 31.82% SI 56.42% AL 1.81% P 0.021% S 0.039% C 00.59%
Submitted with your protest is a July 28, 1994 letter, stating
the article contains 9.831% iron.
The subheadings under consideration are as follows:
7202 Ferroalloys:
.21.10 Ferrosilicon: Containing by weight more
than 55 percent of silicon: Containing
by weight more than 55 percent but not
more than 80 percent of silicon:
Containing by weight more than 3 percent
of calcium ........1.1%
.99.50 Other:
Other......................................................................................5.0%
ISSUE:
Whether the calcium silicon is classifiable as ferrosilicon
containing more than 55 percent silicon but not more than 80
percent and more than 3 percent calcium under subheading
7202.21.10, HTSUS, or as other ferroalloys under subheading
7202.99.50, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1, HTSUS, states in part that for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
Heading 7202, HTSUS, provides for ferroalloys. Note 1(c) to
Chapter 72 provides the following:
(c) Ferro-alloys Alloys in pigs, blocks, lumps or similar
primary forms, in forms obtained by continuous casting and
also in granular or powder forms, whether or not
agglomerated, commonly used as an additive in the
manufacture of other alloys or as deoxidants, desulfurizing
agents or for similar uses in ferrous metallurgy and
generally not usefully malleable, 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
-a total of more than 10 percent of other elements,
excluding carbon, subject to a maximum content of 10 percent
in the case of copper.
In addition, Chapter 72 Subheading Note (2) states the following:
2. For the classification of ferroalloys in the subheadings
of heading 7202 the following rule should be observed:
A ferroalloy is considered as binary and classified under
the relevant subheading (if it exists) if only one of the
alloy elements exceeds the minimum percentage laid down in
chapter note 1(c); by analogy, it is considered respectively
as ternary or quaternary if two or three alloy elements
exceed the minimum percentage.
For the application of this rule, the unspecified "other
elements" referred to in chapter note 1(c) must each exceed 10
percent by weight.
The shipment is considered a ferroalloy, because it meets
the requirements of Note 1(c) to Chapter 72. Note 1(c) to
Chapter 72 requires 4% or more, by weight, of the element iron,
and one or more, by weight, of the additional elements listed in
note 1(c). The exporting country's inspection certificate
indicates that the shipment has more than 8% silicon which is one
of the additional elements listed. Your July 28, 1994 letter,
submitted with your protest, indicates that the article contains
9.831% iron by weight.
In addition, the shipment is ternary because two or more
alloying elements exceed the minimum percentage, by weight,
required by Chapter 72, Note 1(c). According to Subheading Note
2 of Chapter 72, an article is ternary, for heading 7202
purposes, if two of the listed elements in Note 1(c) to Chapter
72 exceed their specified minimum. The certificate indicates
that the article is composed of silicon, aluminum, carbon,
phosphor, sulfur and calcium. The silicon exceeds the required
8%, by weight, specified in Note 1(c) to Chapter 72, and another
element, in this case calcium, exceeds 10% by weight. Therefore,
the ferroalloy is ternary. Because the ferroalloy is ternary,
it is classifiable in subheading 7202.99.50, HTSUS.
This finding is consistent with Headquarters ruling letter
(HRL) 088637, dated April 26, 1991, which held that calcium
silicon cored wire, which contained 60.5% silicon, 30.8% calcium,
1.28% aluminum, 4.7% iron, and 0.37% carbon, was classifiable
under subheading 7202.99.50, HTSUS. See also HRL 953354 dated
June 24, 1993.
HOLDING:
The protest should be DENIED in full. The calcium silicon
is classifiable under subheading 7202.99.50, HTSUS.
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 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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification and
Appeals Division