HQ 953356: Protest No. 1303-91-100217; Calcium Silicon; 7202.21.10;Chapter 72 Note 1(c), Subheading Note (2); HRL 088637

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 953356

                                   June 17, 1993


CLA-2 CO:R:C:M  953356 MMC

CATEGORY: Classification

TARIFF NO.: 7202.99.50

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

RE: Protest No. 1303-91-100217; 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. 1303-91-100217, which concerns the
classification of calcium silicon under the Harmonized Tariff
Schedule of the United States (HTSUS).  The shipments were
liquidated on April 5, 1991 and May 5, 1991 and a protest was
timely filed on June 11, 1991.

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 merchandise was
classified, upon liquidation, under subheading 7202.99.50, HTSUS,
which provides for other ferroalloys.  

     The shipments are composed of approximately 28%-30% calcium
and 63%-65% silicon.  All shipments contain more than 4% iron.

     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 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.

     Each shipment is considered  a ferroalloy, because it meets
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 shipments have more than 4% iron
and more than 8% silicon which is one of the additional elements
listed.   

     In addition, the shipments are ternary because two or more
alloy elements exceed the minimum percentages 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
article is composed of silicon, iron, aluminum, carbon,
phosphorous, sulfur, 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.    

     Because the ferroalloys are ternary, they are classifiable
in subheading 7202.99.5040, HTSUS.

     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.  

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