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HQ 955819


April 18, 1994

CLA-2 CO:R:C:M 955819 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7202.29.00

District Director
U.S. Customs Service
511 Broadway
Room 0198
Portland, Oregon 97209

RE: Protest 2904-93-100060; Ferrosilicon; duty rate based on percentage of silicon; laboratory report

Dear District Director:

This is in regards to Protest 2904-93-100060, which pertains to a dispute over Customs analysis of the amount of silicon content in a shipment of ferrosilicon from Kazakhstan.

FACTS:

On April 14, 1992, a shipment of ferrosilicon from Kazakhstan was entered under subheading 7202.29.00, HTSUS, which provides for "Ferroalloys...Ferrosilicon...Other...." At that time, products from Kazakhstan were dutiable at the Column 2 rate of 4.4 cents/kg on the silicon content. Customs laboratory report #8-92-20814- 001, dated August 3, 1992, found that the silicon content of the ferrosilicon shipment was 48.4% by weight. Therefore, the entry of the ferrosilicon shipment was liquidated on December 11, 1992, under subheading 7202.29.00, HTSUS, with duty assessed at 4.4 cents/kg on the silicon content of 48.4%.

In a protest timely filed on March 10, 1993, the protestant contends that the silicon percentage by weight is only 47%. As evidence, the protestant has submitted a laboratory report from Andrew S. McCreath & Son, Inc., dated May 11, 1992, which states that a sample received from the protestant and identified as "Ferro Silicon, Grade 45% Si" contained 47.05% silicon.

ISSUE:

What is the silicon percentage by weight of the ferrosilicon shipment?

LAW AND ANALYSIS:

In cases such as this, where the protestant submits a laboratory report that differs from the Customs laboratory report, the Customs laboratory report cannot be disregarded and, therefore, takes precedence over the other report. See, Customs Directive 099 3820-002 dated May 4, 1992. In administering the HTSUS, Customs must be consistent while classifying the same type of merchandise entering the U.S. In order to consistently determine the percentage of a product by weight, the same laboratory analysis must be used throughout Customs. Customs cannot rely on reports which may or may not utilize different testing methods and still remain consistent in its tariff classification. Additionally, Customs does not have any evidence that the merchandise tested by the other laboratory is the same merchandise that was imported into the U.S. Customs must rely on its own laboratory analysis when determining the proper tariff classification.

Therefore, the percentage of silicon in the ferrosilicon shipment is 48.4% as determined by Customs laboratory report #8- 92-20814-001.

HOLDING:

The duty of ferrosilicon is based on the silicon content of 48.4% by weight as determined by Customs laboratory report #8-92- 20814-001.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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