CLA-2 RR:CR:GC 965326 JAS
Shieldalloy Metallurgical Corp.
12 West Blvd.
P.O. Box 768
Newfield, NJ 08344-0768
RE: HQ 089130 Revoked; Ferromanganese Silicon
Gentlemen:
In HQ 089130, which was issued to the District (now Port) Director of Customs, Ogdensburg, NY, on August 14, 1991, in connection with Protest
0712-91-000043, ferromanganese silicon 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 089130 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 089130 was a protest review decision, liquidation of the involved entries will be unaffected by this decision.
FACTS:
The merchandise in HQ 089130 was identified as ferromanganese silicon, presumably in bulk. It was described as containing approximately 62 percent manganese, 31 percent silicon and 6 percent iron. The merchandise was not further described. However, this material is used largely as an additive to the melt
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in steelmaking. As such, physical properties of the material in solid form, such as mechanical strength, are not a relevant consideration. Only the chemical composition of the material is of significance.
The merchandise was entered under a provision in heading 7202,
Harmonized Tariff Schedule of the United States (HTSUS), a provision 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.
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
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.
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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 subject merchandise 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.”
Upon consideration of all the available evidence, we conclude that
ferromanganese silicon, the subject of HQ 089130, is within the common and commercial meaning of the term “ferrosilicon manganese” for tariff purposes.
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HOLDING:
Under the authority of GRI 1, the merchandise designated ferromanganese silicon is provided for in heading 7202. It is classifiable in subheading 7202.30.00, HTSUS.
EFFECT ON OTHER RULINGS:
HQ 089130, dated August 14, 1991, 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