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HQ 958783

MAY 9, 1996

CLA-2 RR:TC:MM 958783 JAS


TARIFF NO.: 7202.99.50

Port Director of Customs
200 St. Paul Place
Baltimore, MD 21202

RE: PRD 1303-95-100066; Silicomanganese, Ferrosilicon Manganese, Subheading 7202.30.00; Other Ferroalloys, Subheading 7202.99.50; Commercial Designation, ASTM A 483, A 701; Chapter 72, Note 1(c), Chapter 72, Subheading Note 2; HQ 089130

Dear Port Director:

This is our decision on protest 1303-95-100066, filed against your classification of silicomanganese produced in Norway. The entries were liquidated on November 14, 1994, and January 27, 1995, and this protest timely filed on February 10, 1995. Counsel for protestant made additional arguments at a meeting in our office on March 26, 1996, which he confirmed in a submission, dated May 1, 1996.


The merchandise is granular silicomanganese in bulk. It is a ferroalloy containing between 28-32 percent silicon, between 58-63 percent manganese, less than 10 percent iron, and minor amounts of carbon, phosphorous and sulfur, all by weight. It is used primarily as an alloying element in steel production.

The merchandise was entered under a provision in heading 7207, Harmonized Tariff Schedule of the United States (HTSUS), for ferrosilicon manganese. Your office determined that the product was a ferroalloy but not ferrosilicon manganese for tariff purposes. The entries were liquidated under a provision in HTS heading 7202 for other ferroalloys.

Counsel for the protestant maintains that under the Tariff Schedules of the United States (TSUS), the predecessor tariff code to the HTSUS, the term ferrosilicon manganese was defined in Schedule 6, Part 2, Subpart B, Headnote 2(e)(vii), which describes the instant merchandise. He concedes, however, that there is a change in definitional methodology under the HTSUS, so that ferrosilicon manganese is not specifically defined. Nevertheless, counsel maintains that because of the product's chemical composition it is within the term Ferroalloys, as defined in Chapter 72, Note 1(c), HTSUS. Furthermore, the product should be considered ternary for purposes of Chapter 72, Subheading Note 2, HTSUS, and classified in the appropriate subheading of heading 7202, if it exists. Counsel concludes that subheading 7202.30.00, HTSUS, a provision for ferrosilicon manganese, is such an appropriate ternary subheading. In fact, counsel maintains that other countries subscribing to the Harmonized System classify this merchandise in subheading 7202.30.00 as ferrosilicon manganese.

The provisions under consideration are as follows:

7202 Ferroalloys:



7202.30.00 Ferrosilicon manganese
...3.9 percent andvalorem


7202.99 Other:

7202.99.50 Other...5 percent ad valorem


Whether the merchandise under protest is ferrosilicon manganese for tariff purposes. - 3 -


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The merchandise is described on commercial invoices as silicomanganese but is described on the Customs Form 7501 as "Ferroalloys; ferroslcn mang." Where not defined in the text of the HTSUS, in applicable section or chapter notes, or in the Harmonized Commodity Description and Coding System Explanatory Notes (ENs), tariff terms are construed according to their common and commercial meanings, which are presumed to be the same. The term "ferrosilicon manganese" is not defined in the tariff or in the ENs. However, it is our understanding that ferrosilicon manganese is also known as silicomanganese. See HQ 089130, dated August 14, 1991. American Society for Testing and Materials (ASTM) A-483 (1974) is a recognized specification for the ferroalloy silicomanganese. The manganese content for each of the three grades recognized in this specification is 65.0-68.0 percent, the silicon content is 12.5-21.0 percent, carbon 1.5-3.0 percent with trace amounts of phosphorus and sulfur, all by weight, with the remaining element being iron. Because the silicon content of the ferroalloy in this protest is significantly greater than that recognized in ASTM A-483, the merchandise is not within the common or commercial meaning of the term silicomanganese or ferrosilicon manganese.

ASTM A 701 (1974) is a specification for ferromanganese-silicon. The manganese content recognized in this specification is 63-66 percent, the silicon content is 28-32 percent, 0.76 percent phosphorus, arsenic, tin, lead and chromium, combined, all by weight, with the remainder being iron. The merchandise in this protest more closely conforms to the specification in ASTM A 701. However, because there is no subheading under heading 7202 for the ferroalloy ferromanganese-silicon, it is classifiable in subheading 7202.99.50, HTSUS. See HQ 089130.

Counsel notes that other countries subscribing to the Harmonized System designate the ferroalloy in issue having 16-20 percent silicon, by weight, as "standard" silicomanganese, and the same ferroalloy with 28-33 percent silicon, by weight, as "low carbon" silicomanganese; however, they classify both products in subheading 7202.30.00. As stated in T.D. 89-80, - 4 -
published in the Federal Register on August 23, 1989 (54 FR 35127), classification rulings from other Customs administrations are instructive only and are not binding on the United States. In this case, because we find that the merchandise under protest is within the common and commercial meanings of the term "ferromanganese-silicon," classification in subheading 7202.99.50 is appropriate.


Under the authority of GRI 1, the merchandise designated silicomanganese is provided for in heading 7202. It is classifiable in subheading 7202.99.50, HTSUS.

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, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.


John Durant, Director
Tariff Classification

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