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HQ 089130


August 14, 1991

CLA-2 CO:R:C:M 089130 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7202.99.50

District Director
U.S. Customs Service
Port of Ogdensburg
127 North Water Street
Ogdensburg, NY 13669

RE: Protest number 0712-91-000043; ferromanganese silicon; Subheading 7202.99.50; Chapter 72, note 1(c); Subheading 7202.30.00; American Society for Testing and Materials A 701-74; Explanatory Note 72.02.

Dear District Director:

Protest for further review number 0712-91-000043 dated 1/9/91, was filed against the classification of ferromanganese silicon within subheading 7202.99.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise under protest is ferromanganese silicon. It contains approximately 62 percent of manganese (Mn), 31 percent of silicon (Si), and 6 percent of iron (Fe).

ISSUE:

Whether the subject ferromanganese silicon is properly classifiable within subheading 7202.30.00, HTSUSA, which provides for ferrosilicon manganese; or classifiable within subheading 7202.99.50, HTSUSA, which provides for other ferroalloys.

LAW AND ANALYSIS:

Heading 7202, HTSUSA, provides for ferroalloys. These are described as "[a]lloys . . . containing by weight 4 percent or
more of the element iron and one or more of the following: . . . more than 30 percent of manganese . . . more than 8 percent of silicon . . ." Chapter 72, note 1(c). The subject material satisfies this description. Accordingly, the subject ferromanganese silicon satisfies the terms of heading 7202, HTSUSA, and is properly classifiable therein.

Subheading 7202.30.00, HTSUSA, provides for ferrosilicon manganese. The protestant claims that the subject ferromanganese silicon satisfies the terms of this subheading. This claim is based on the fact that the subject ferromanganese silicon contains more than 30 percent of Mn and more than 8 percent of Si.

Since the term "ferrosilicon manganese" is not defined in the HTSUSA, it is proper to presume that Congress intended to apply its common and commercial meaning. Lynteq, Inc. v. United States, No. 90-04-00175, slip op. at 8 (Ct. Int'l Trade, June 17, 1991). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). It is our understanding that ferrosilicon manganese is also known as silico-manganese. The Si chemical requirement for silico-manganese range from 12.5 percent to 21.0 percent. American Society for Testing and Materials (ASTM) A 483-64 (1974). The subject ferromanganese silicon does not satisfy this requirement. It contains approximately 31 percent Si. Accordingly, the subject ferromanganese silicon does not satisfy the commercial meaning of ferrosilicon manganese. Therefore, the subject ferromanganese silicon does not satisfy the terms of subheading 7202.30.00, HTSUSA, and is not classifiable therein.

The standard chemical requirements for ferromanganese silicon are 63 to 66 percent Mn and 28 to 32 percent Si. ASTM A 701-74 (1974). The chemical composition of the subject material closely resembles standard ferromanganese silicon. It contains approximately 62 percent Mn and 31 percent Si. In our view, the nearly identical composition of the subject material to that of standard ferromanganese silicon requires the same classification for each material. Ferromanganese silicon is not eo nomine provided for within heading 7202, HTSUSA. However, it does satisfy the terms of this heading. Subheading 7202.99.50, HTSUSA, provides for other ferroalloys. Since the subject ferro- manganese silicon satisfies the terms of heading 7202, HTSUSA, but it is not provided for in any of the other subheadings of this heading, it is properly classifiable within subheading 7202.99.50, HTSUSA.

HOLDING:

The subject ferromanganese silicon is properly classifiable within subheading 7202.99.50, HTSUSA, which provides for other ferroalloys. You should deny the protest in full. A copy of this decision should be attached to the Customs Form 19, Notice of Action, and forwarded to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division


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