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HQ 953353


June 17, 1993

CLA-2 CO:R:C:M 953353 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7202.99.50

District Director
U.S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202

RE: Protest No. 1303-92-100006; 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. 1303-92-100006, which concerns the classification of calcium silicon under the Harmonized Tariff Schedule of the United States (HTSUS). The shipment was liquidated on October 18, 1991 and a protest was timely filed on January 13,1992.

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 alloys were classified, upon liquidation, under subheading 7202.99.50, HTSUS, which provides for other ferroalloys.

The lot consisted of 128 drums packed on 32 pallets packed in 2 20ft. containers. The calcium silicon contained in the different containers that comprise the shipment are composed of the following elements:

35,968kgs. 18,000kgs. 53.952kgs.

CA 32.30% CA 31.90% CA 32.15%
SI 60.80% SI 61.10% SI 61.20%

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 ferro-alloys. 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 contents of each container are ferroalloys, because they meet the requirements of Note 1(c) to Chapter 72. Note 1(c) to Chapter 72 requires a 4% or higher amount of iron and other minimum amounts of additional elements as listed. Protestant's lab reports indicate that the contents of each drum contain more than 8% silicon which is an additional listed element. While protestant's lab reports do not indicate an iron content higher than 4%, we assume this to be the case.

In addition, the contents are 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 contents of the drums are composed of silicon and calcium. The silicon exceeds the required 8% specified in Note 1(c) to Chapter 72 and another "other elements", calcium, exceeds 10%. Therefore, the ferroalloys are 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 contents of the containers are ternary, they are 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

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