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HQ 958349



January 19, 1996

CLA-2 CO:R:C:M 958349 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7202.99.50

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

RE: Protest No. 1303-94-100183; Calcium Silicon; 7202.21.10; Chapter 72 Note 1(c), Subheading Note (2); HRL 088637, 953356

Dear Port Director:

The following is our decision regarding the request for further review of Protest No. 1303-94-100193, which concerns the classification of calcium silicon under the Harmonized Tariff Schedule of the United States (HTSUS). The entries were liquidated on March 25, 1994, and the protest was timely filed on June 16, 1994.

FACTS:

The merchandise in question is calcium silicon. Protestant describes the article as "calcium ferro silicon" and argues that the calcium silicon is classifiable as a ferro silicon. Protestant entered the articles under subheading 7202.21.10, HTSUS, which provides for ferrosilicon containing by weight more than 3 percent of calcium. The entries were liquidated under subheading 7202.99.50, HTSUS, which provides for other ferroalloys. According to the inspection certificate from the country of exportation representative samples, drawn at random, indicate that the shipment is composed of the following elements:

CA 31.82% SI 56.42% AL 1.81% P 0.021% S 0.039% C 00.59%

Submitted with your protest is a July 28, 1994 letter, stating the article contains 9.831% iron.

The subheadings under consideration are as follows:

7202 Ferroalloys:

.21.10 Ferrosilicon: Containing by weight more than 55 percent of silicon: Containing by weight more than 55 percent but not more than 80 percent of silicon:
Containing by weight more than 3 percent of calcium ........1.1%

.99.50 Other:
Other......................................................................................5.0%

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 4% or more, by weight, of the element iron, and one or more, by weight, of the additional elements listed in note 1(c). The exporting country's inspection certificate indicates that the shipment has more than 8% silicon which is one of the additional elements listed. Your July 28, 1994 letter, submitted with your protest, indicates that the article contains 9.831% iron by weight.

In addition, the shipment is ternary because two or more alloying elements exceed the minimum percentage, by weight, required by 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. The certificate indicates that the article is composed of silicon, aluminum, carbon, phosphor, sulfur and calcium. The silicon exceeds the required 8%, by weight, specified in Note 1(c) to Chapter 72, and another element, in this case calcium, exceeds 10% by weight. Therefore, the ferroalloy is ternary. Because the ferroalloy is ternary, it is classifiable in subheading 7202.99.50, HTSUS.

This finding is consistent with Headquarters ruling letter (HRL) 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. See also HRL 953354 dated June 24, 1993.

HOLDING:

The protest should be DENIED in full. The calcium silicon is classifiable under subheading 7202.99.50, HTSUS.

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 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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification and
Appeals Division

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