CLA-2OT:RR:CTF:TCM H237643 ERB
Mr. Charles Spoto
Alba Wheels Up International, Inc.
150-30 132nd Avenue, Suite 208
Jamaica, New York 11434
RE: Modification of NY J83810; Tariff classification of two samples of silicon dioxide “C-Gel”, synthetic silica gel, from Switzerland
Dear Mr. Spoto:
On June 23, 2003, U.S. Customs and Border Protection (CBP) issued Wheels Up International, Inc. (Wheels Up) New York Ruling Letter (NY) J83810. NY J83810 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States, (HTSUS) of submitted samples of four grades of silicon dioxide, referred to as “C-Gels.” We have since reviewed NY J83810 and find it to be in error with respect to two lots referred to as “C-560” (40-60 microns, Lot 4863, and 200-500 microns, Lot 4934), which is described in detail herein.
Pursuant to Section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by Section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin , Volume 49, Number 9, on March 4, 2015, proposing to modify NY J83810, and any treatment accorded to substantially identical transactions. Two comments were received in opposition, and the arguments made therein were considered in this office’s analysis below.
FACTS
According to NY J83810, four samples were submitted to CBP for analysis, one of each of four grades of silicon dioxide being imported:
“C-560 HYD” (40-63 microns, Lot 5718);
Two types of “C-560” (40-60 microns, Lot 4863 and 200-500 microns, Lot 4934);
“C-18 C-490” (35-70 microns, Lot 1142)
At the time, the Lots 4863 and 4934, were classified in subheading 2811.22.50, HTSUS. Specifically CBP stated:
The technical information you submitted indicates the bound water content of both types of “C-560” is under 5 percent. The applicable subheading for the C-gel “C-560” (40-60 microns, Lot 4863 and 200-500 microns, Lot 4934), will be 2811.22.5000, HTSUS, which provides for Other inorganic acids and other inorganic oxygen compounds of nonmetals: Silicon Dioxide: Other. The rate of duty will be Free.
Thus, in that ruling CBP made note that the bound water content of both types of C-560 was under 5%. The New York Laboratory was asked whether this product meets the criteria for silicon dioxide. Laboratory Report NY 20030621, dated May 15, 2003 stated the following in response:
The sample consists of four plastic containers of a white powder of varying mesh size as follows: Lot 4931 (0.200-0.500 MM), Lot 4863 (0.040-0.060MM), Lot 5718 (0.040-0.063MM), and Lot 1142 (0.035-0.070 MM). Laboratory analysis has determined that the four sample [sic] are an amorphous form of silica. Lot number 1142 also contains a coating of an unsaturated 18 carbon non cyclic hydrocarbon. Method reference uscl 25.01.
ISSUE:
Are the subject C-gels classified as synthetic silica gel under subheading 2811.22.10, HTSUS, or are they classified as other silicon dioxide under subheading 2811.22.50, HTSUS?
LAW AND ANALYSIS
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows:
2811 Other inorganic acids and other inorganic oxygen compounds of nonmetals:
2811.22 Other inorganic oxygen compounds of nonmetals: Silicon dioxide:
2811.22.10 Synthetic silica gel
2811.22.50 Other
Because the instant classification issue occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter, and subchapter notes also apply, unless the context otherwise requires.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 82.11 (M) Silicon Compounds discusses silicon dioxide of this heading. Therein it states, in relevant part:
It can be either in amorphous form (as a while powder “silica white”, “flowers of silica”, “calcined silica”; as vitreous granules – “vitreous silica”; in gelatinous condition – “silica frost”; “hydrated silica”), or in crystals (tridymite and cristobalite forms).
In Headquarters Ruling (HQ) 086755, dated September 28, 1990, CBP concluded that “Although most silica gels will have a bound water content of greater than 5 percent, there exists no strict minimum-bound-water-content-cutoff point for the classification of silica gel.” Multiple characteristics must be considered in determining whether a product is “synthetic silica gel” of subheading 2811.22.10, HTSUS or “other silicon dioxide” of subheading 2811.22.50, HTSUS; no single criteria, such as the bound water content, is sufficient to classify in either subheading.
The two C-gels at issue are inorganic amorphous forms of silica. CBP has had prior occasion to classify amorphous forms of silica. In all cases CBP has determined that the goods are properly classified in subheading 2811.22.10, HTSUS, as synthetic silica gel, without reference to the bound water content. See NY N237450, dated March 15, 2013, whereby CBP classified a sample of white, odorless, granules referred to as silica gel or base gel, as synthetic amorphous silicon dioxide under subheading 2811.22.10, HTSUS. Further, the two C-gel products at issue do not contain any impermissible impurities. See Degussa Corporation, v. United States, 508 F.3d 1044, (November 26, 2007), where the Court of Appeals for the Federal Circuit reversed the Court of International Trade holding that surface-modified treatments changed the nature of the silica particle from hydrophilic (i.e. water-attractive) to hydrophobic (i.e. water-repellant) and this constitutes an impermissible impurity and cannot be classified under Chapter 28.
Therefore, silicon dioxide which can be described as synthetic silica gel is classified in subheading 2811.22.10, HTSUS, the eo nomine subheading for the merchandise.
The first set of comments received in this office in response to the notice of proposed modification of NY J83810, argues that the instant ruling is irreconcilable with HQ 086755. Both commenters state that this office is downgrading the importance of bound water content in the classification of amorphous silica. However, HQ 086755 states, and the instant ruling confirms, that the amount of bound water found in amorphous silica is crucial to the classification of a product being considered for classification under either subheading 2811.22.10 or 2811.22.50, HTSUS. This office is not eliminating the use of bound water content as a characteristic relevant to classification. However, it is not the sole characteristic to be considered.
The first commenter obtained via a Freedom of Information Act (FOIA) request, a memo, dated September 12, 1990, from Customs Office of Laboratories & Scientific Services (OLSS) to this office’s predecessor, the Commercial Rulings Division regarding HQ 086755. Therein, OLSS stated, and the commenter quoted, that, “the amount of bound water found in the amorphous silica is crucial to its classification.” But of importance here, OLSS continued to state, “We stress, however, that although most silica gels will have a bound water content of greater than 5%, the denotation of a strict “minimum bound water content” cutoff point for the classification [of] synthetic silica gel is not advised.” The merchandise in HQ 086755 was analyzed for its bound water content, but also for its overall physical characteristics, including its physical form. That rationale is confirmed here. Merchandise under consideration as classified in the subheadings of 2811.22, HTSUS, will be analyzed for its bound water content as well as any other relevant characteristic, such as physical form or viscosity. The bound water content is not the sole characteristic by which these products will be classified.
HOLDING
By application of GRI 1, the two types of “C-560” silica gel (Lots 4863 and 4934) are provided for in heading 2811, HTSUS. They are specifically provided for under subheading 2811.22.10, HTSUS, as “Other inorganic acids and other inorganic oxygen compounds of nonmetals:…Silicon Dioxide: Synthetic silica gel.” The column one, general rate of duty is 3.7 percent ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov
The classification of C-560 HYD (40-63 microns, Lot 5718) and C-18 C-490 (35-70 microns, Lot 1142) of NY J83810 remains unchanged.
EFFECT ON OTHER RULINGS
NY J83810, dated June 23, 2003, is hereby MODIFIED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division