CLA-2 RR:CR:GC 965325 JAS
Edward J. Farrell
Wigman, Cohen, Leitner & Myers, P.C.
900 17th St., N.W., Suite 1000
Washington, D.C. 20006
RE: HQ 958783 Revoked; Granular Silicomanganese
Dear Mr. Farrell:
In HQ 958783, which was issued to the Port Director of Customs, Baltimore, on May 9, 1996, in connection with Protest 1303-95-100066, filed on behalf of Pickands Mather Sales, Inc., granular silicomanganese was held to be classified in subheading 7202.99.50, Harmonized Tariff Schedule of the United States (HTSUS), as other ferroalloys
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 958783 was published on December 12, 2001, in the Customs Bulletin, Volume 35, Number 50. No comments were received in response to that notice. As previously indicated, because HQ 958783 was a protest review decision, liquidation of the involved entries will be unaffected by this decision.
FACTS:
The merchandise in HQ 958783, granular silicomanganese in bulk, was described as a ferroalloy containing between 28-32 percent silicon, between 58-63 percent manganese, less than 10 percent iron, and minor amounts of carbon, phosphorous and sulfur, all by weight. It is used primarily as an alloying element in steel production.
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The merchandise was entered under a provision in heading 7202, Harmonized Tariff Schedule of the United States (HTSUS), for ferrosilicon manganese. At liquidation, the product was determined to be a ferroalloy but not ferrosilicon manganese for tariff purposes. The entries were liquidated under a provision in HTS heading 7202 for other ferroalloys. You advanced several arguments in support of the entered classification: (1) the merchandise was within the term ferrosilicon manganese, defined under the HTSUS predecessor tariff code, the Tariff Schedules of the United States (TSUS), which is indicative of its
intended classification under the HTSUS; (2) because of the product’s chemical composition it is within the term Ferroalloys, as defined in Chapter 72, Note 1(c), HTSUS, and subheading 7202.30.00, HTSUS, a provision for ferrosilicon manganese, is an appropriate ternary subheading that describes the merchandise; (3) the term “ferrosilicon manganese” describes a product eo nomine, by name, and such provisions normally include all forms of the named article; and, finally (4) other countries subscribing to the Harmonized System designate the ferroalloy at issue having 16-20 percent silicon, by weight, as “standard” silicomanganese, and the same ferroalloy with 28-33 percent silicon, by weight, as “low carbon” silicomanganese; however, they classify both products in subheading 7202.30.
The HTSUS provisions under consideration are as follows:
7202 Ferroalloys:
Ferromanganese:
* * *
Ferrosilicon:
* * *
7202.30.00 Ferrosilicon manganese
Other:
7202.99 Other:
7202.99.50 Other
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ISSUE:
Whether the merchandise under protest is ferrosilicon manganese for tariff purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
Where not defined in a legal note under the HTSUS or clearly described in the Harmonized Commodity Description and Coding System Explanatory Notes (ENs), tariff terms are construed in accordance with their common and commercial meanings which are presumed to be the same. While the merchandise at issue is clearly a ferroalloy for tariff purposes, the term “ferrosilicon manganese” is not defined in the legal text or in the ENs. Where a term is technical in nature, general lexicons may prove to be inconclusive in establishing its common meaning. In such cases, more specialized sources within the involved industry, to include testimony of persons with particular knowledge in the field, should be consulted. See THK America v. United States, 17 CIT 1169 (1993). At least two such sources independently confirm in affidavits that the term “ferrosilicon manganese” has no recognized commercial meaning, but is a general term that encompasses all alloys of iron, silicon and manganese that qualify as a ferroalloy under the HTSUS, and so includes both silicomanganese and ferromanganese silicon. The sources further indicate that in fact the latter two terms are used in practice and designate certain composition ranges for the alloy. Therefore, notwithstanding the fact that the silicomanganese at issue may not be strictly within American Society for Testing and Materials (ASTM) designation A-483 for the ferroalloy “silicomanganese,” the referenced sources are equally probative of the common and commercial meaning of the term “ferrosilicon manganese.”
As stated in T.D. 89-80, published in the Federal Register on August 23, 1989 (54 FR 35127), classification rulings from other Customs administrations on like merchandise are instructive only and are not binding on the United States. Nevertheless, such rulings are indicative of a classification we may wish to consider during our own rulings process. Five Customs administrations have recently responded to our inquiry on this classification issue and confirmed that they classify the ferroalloy silicomanganese in subheading 7202.30. In their responses, these administrations confirm that the terms ferromanganese silicon and silicomanganese are within the scope of the 7202.30 subheading designation “ferrosilicon manganese.”
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Upon consideration of all the available evidence, we conclude that the granular silicomanganese, the subject of HQ 958783, is within the common and commercial meaning of the term “ferrosilicon manganese” for tariff purposes.
HOLDING:
Under the authority of GRI 1, the merchandise designated silicomanganese is provided for in heading 7202. It is classifiable in subheading 7202.30.00, HTSUS.
EFFECT ON OTHER RULINGS:
HQ 958783, dated May 9, 1996, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division