CLA-2 CO:R:C:M 953354 MMC
District Director
U.S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202
RE: Protest No. 1303-92-100313; Calcium Silicon; 7202.21.10;
Chapter 72 Note 1(c), Subheading Note (2); HRL 088637
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 1303-92-100313, which concerns the
classification of calcium silicon under the Harmonized Tariff
Schedule of the United States (HTSUS). The shipment was
liquidated on October 2, 1992, and a protest was timely filed on
November 16, 1992.
FACTS:
The merchandise in question is calcium silicon. Protestant
argues that the calcium silicon is classifiable under subheading
7202.21.10, HTSUS, which provides for ferrosilicon containing by
weight more than 3 percent of calcium. The alloy was classified,
upon liquidation, under subheading 7202.99.50, HTSUS, which
provides for other ferroalloys.
The shipment is composed of the following elements:
CA 31.80% SI 60.80%
AL 00.75% C 00.49%
The subheadings under consideration are as follows:
7202.21.10 Ferroalloys: [f]errosilicon: [c]ontaining by
weight more than 55 percent of silicon:
[c]ontaining by weight more than 55 percent
but not more than 80 percent of silicon:
[c]ontaining by weight more than 3 percent of
calcium (1.1%)
7202.99.50 Ferroalloys: [o]ther: [o]ther (5%)
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 a 4% or higher rate of iron and one other
minimum amount of the additional elements listed. Protestant's
lab reports indicate that the shipment has more than 8% silicon
which is one of the additional elements listed. While
protestant's lab report does not list iron as an element, we
assume the ferroalloy contains more than 4% iron.
In addition, the shipment is ternary because two or more
alloy elements exceed the minimum percentage promulgated in
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. Protestant's lab reports indicate that the
article is composed of silicon, aluminum, carbon, and calcium.
The silicon exceeds the required 8% specified in Note 1(c) to
Chapter 72 and another "other elements", in this case calcium,
exceeds 10%. Therefore, the ferroalloy is ternary.
This finding is consistent with HQ 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.
Because the ferroalloy is ternary, it is classifiable in
subheading 7202.99.50, HTSUS.
HOLDING:
The calcium silicon is classifiable under subheading
7202.99.50, HTSUS.
The protest should be denied in full. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director