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HQ 960426




September 3, 1997

CLA-2 RR:TC:FC 960426 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.9050

Ms. Silvia Perez
M.G. Maher & Company, Inc.
One Canal Place
Suite 2100
New Orleans, LA 70130

RE: Reconsideration of New York Ruling Letter (NYRL) B80710, dated January 22, 1997, Regarding Aluminum Master Alloy

Dear Ms. Perez:

This is in reference to your request for reconsideration of NYRL B80710 which held that the subject alloy was classifiable under subheading 3824.90.9050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You indicated that your product is classifiable in subheading 2850.00.5000, HTSUSA, and does not come within any of the exclusions noted therein and that it is not an alloy noted in other chapters of the HTSUSA.

FACTS:

The product is an aluminum master alloy-cast with a chemical composition, as noted in the referenced NYRL, as follows:

Aluminum 10.0-14.0%
Silicon 86.0-88.9%
Iron 3.9% Max.
Calcium .50% Max.

ISSUE:

Is the subject product a silicide of subheading 2850.00.5000, HTSUSA, and if not, how is it classified?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the GRI's taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In reconsidering the classification of the subject alloy we note that the inquirer states that the proper classification for the product is as a silicide in subheading 2850.00.2000, HTSUSA. It is noted that the Explanatory Notes (EN) to the Harmonized System indicate that heading 2850 excludes combinations of silicon with oxygen, halogens, sulphur and phosphorus which are not included in the composition of the instant product. It is further noted that aluminum master alloy is not a ferro alloy and master alloy containing silicon in heading 7204 or 7404, HTSUSA, nor is it an aluminum silicon alloy in chapter 76 because the total weight of the aluminum does not equal or exceed the total weight of the other elements present.

We agree with these conclusions. However, based on the scientific literature, the aluminum master alloy is not a silicide and, therefore, cannot properly classified under the provision for other silicides in subheading 2850.00.5000, HTSUSA. In this regard we note Kirk-Othmer, 3rd Edition, vol. 20, pp 486/7, which specifically indicates that aluminum is one of the metals that does not form a silicide with silicon.

Heading 2850 provides for hydrides, azides, silicides and borides, whether or not chemically defined, other than the compounds which are also carbides of heading 2849. Since the instant product is not any of those products, the subject alloy is not classifiable therein. In this regard, we note the inconsistent conclusion of NYRL 884433, referenced by the inquirer. We have reviewed that ruling and have concluded that it was based on incomplete or incorrect information. Action to revoke that ruling pursuant to the provisions of section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Implementation Act. Pub. L 103-182, 107 Stat. 2057, 2186 (1993) is presently under consideration.

HOLDING:

Aluminum master alloy, of the composition noted above, is classifiable in subheading 3824.90.9050, HTSUSA, which provides for prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the - 3 -
chemical or allied industries, not elsewhere specified or included: Other: Other: Other: Other: Other: Other. Items so classified are subject to a general rate of duty of 5 percent ad valorem.

NYRL B80710 is hereby affirmed.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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