OT:RR:CTF:CPMMA H332948 NAH
Center Director
Pharmaceuticals, Health and Chemicals
Center of Excellence and Expertise
U.S. Customs and Border Protection
Attn: Michael Neeley, Import Specialist
RE: Request for Further Review of Protest Number 1601-21-105798; Classification;
Applicability of Section 301 Trade Remedies; Silica Gel.
Dear Center Director,
This is in reply to the Application for Further Review (“AFR”) of Protest Number
1602-21-105798, filed on September 22, 2021, by Harvest Ventures, dba Ultra Pet Company,
Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (“CBP”) classification of
certain silica gel from China under the Harmonized Tariff Schedule of the United States
(“HTSUS”) and the application of certain Section 301 trade remedies. The AFR was forwarded
to this office for consideration. No samples were provided for examination.
FACTS:
The subject product is identified as synthetic silica gel granules, 0.25 to 0.6 millimeters
(mm). The product is further described as an amorphous and porous form of silicon dioxide,
consisting of an irregular, tridimensional framework of alternating silicon and oxygen atoms
with nanometer-scale voids and pores. Silica gel removes moisture from the surrounding
environment by adsorption (water molecules adhere to the surface of silica gel). Silica gel
granules have a strong affinity for water molecules and are widely used as desiccants. The silica
gel is imported in two different packages for retail sale.
1
The first package is for the “Ultra Art Crystals.” The packaging is a plastic bag that seals
at the top. The front of the packaging presents the product’s name, a stylized rose, other flowers,
and the words, in English, Spanish, and French: “Flower Drying Silica Gel Crystals”, “easy to
use,” “super absorbent,” and “maintains colors – minimal fading.” The back of the packaging
continues the flower images and provides eight steps for using the silica gel to dry flowers in
English, Spanish, and French.
The second package is for the “Ultra Micro Crystals.” The packaging is a rectangular
box with two primary faces for advertisement and product information. The large front panel
presents the product name, a stylized cat, two endorsements (“soft on paws” and “1st in odor
control”), and the words: “cat litter,” “one bag,” “one cat,” and “one month.” The large back
panel presents, in the top half, a smaller version of the front panel. The bottom half of the back
panel presents, in English, Spanish, and French, instructions for use of the silica gel as cat litter,
additional product information, and warning information regarding use of the product. The
bottom half of the right-side panel contains contact and company information. The bottom half
of the left-side panel presents how to use Ultra Micro Crystals to dry flowers in five steps and
suggests that additional uses can be found at a certain website.
The protested merchandise consists of 171 entries that were entered at the Port of
Charleston, SC, (“Port”) between April 05, 2019, and August 6, 2020, and were liquidated
between March 26, 2021, and July 30, 2021, under subheading 2811.22.1000, HTSUSA
(“Annotated”), which provides for “Other inorganic acids and other inorganic oxygen
compounds of nonmetals: Other inorganic oxygen compounds of nonmetals: Silicon dioxide:
Synthetic silica gel.” As products of China, the merchandise was subject to duties imposed by
Section 301 of the Trade Act of 1974 (Sections 301-310, 19 U.S.C. §§2411-2420) under heading
9903.88.03, HTSUS, which provides for “[A]rticles the product of China, as provided for in U.S.
note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note
20(f).” At the time of importation, the merchandise imported with Section 301 exclusion
heading 9903.88.38, HTSUS, and exclusion heading 9903.88.43, HTSUS. CBP disagreed and in
two Notice of Actions (CBP Form 29), dated March 15, 2021, and March 16, 2021, CBP denied
the Section 301 exclusions and directed a rate advance under heading 9903.88.03, HTSUS, only.
A new bill was issued to the importer for the additional duties.
The Protestant filed this Protest and AFR on September 22, 2021, asserting that the
subject merchandise, classified under 2811.22.1000, HTSUSA, should have been liquidated
under headings 9903.88.38 or 9903.88.43, HTSUS, as an “articles the product of China . . . each
covered by an exclusion granted by the U.S. Trade Representative.” Specifically, Protestant
asserts either the exclusion set forth in Chapter 99 Note 20(qq)(12) under heading 9903.88.38,
HTSUS, which provides for “Synthetic silica gel, in granules measuring 0.25 to 0.6 mm in
diameter, put up in retail packaging, of a kind used for drying and preserving flowers (described
in statistical reporting number 2811.22.1000)” or Chapter 99 Note 20(vv)(12) under heading
9903.88.43, HTSUS, which provides for “Synthetic silica gel, in amorphous granules, of a kind
used as a catalyst support (described in statistical reporting number 2811.22.1000).” The
Protestant does not contest the classification of the merchandise under subheading 2811.22.1000,
HTSUSA.
2
ISSUE:
1) Whether the subject articles are entitled to a Section 301 exclusion under heading
9903.88.38, HTSUS, as “Synthetic silica gel, in granules measuring 0.25 to 0.6 mm in
diameter, put up in retail packaging, of a kind used for drying and preserving flowers
(described in statistical reporting number 2811.22.1000)”?
2) Whether the subject articles are entitled to a Section 301 exclusion under 9903.88.43,
HTSUS, as “Synthetic silica gel, in amorphous granules, of a kind used as a catalyst
support (described in statistical reporting number 2811.22.1000)”?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision
on classification and the rate and amount of duties chargeable. The protest was timely filed,
within 180 days of liquidation. See Miscellaneous Trade and Technical Corrections Act of 2004,
Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further review of Protest No. 1601-21-105798 is properly accorded pursuant to 19 C.F.R. §
174.24(b) because the decision against which the protest was filed is alleged to involve a
question of law or fact that has not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification 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.
In this case, the 2019 HTSUS headings under consideration are as follows:
2811 Other inorganic acids and other inorganic oxygen compounds of nonmetals:
Other inorganic oxygen compounds of nonmetals:
2811.22 Silicon dioxide:
2811.22.1000 Synthetic silica gel
9903.88.03 Except as provided in headings 9903.88.13, 9903.88.18, 9903.88.33,
9903.88.34, 9903.88.35, 9903.88.36, 9903.88.37, 9903.88.38, 9903.88.40,
9903.88.41, 9903.88.43, 9903.88.45, 9903.88.46, 9903.88.48, 9903.88.56,
9903.88.64, 9903.88.66, 9903.88.67 or 9903.88.68, articles the product of
China, as provided for in U.S. note 20(e) to this subchapter and as provided for
in the subheadings enumerated in U.S. note 20(f)
9903.88.38 Articles the product of China, as provided for in U.S. note 20(qq) to this
subchapter, each covered by an exclusion granted by the U.S. Trade
Representative
9903.88.43 Articles the product of China, as provided for in U.S. note 20(vv) to this
subchapter, each covered by an exclusion granted by the U.S. Trade
Representative
* * * * *
3
U.S. note 20(qq) to 9903.88.43, HTSUSA, states in pertinent part:
The U.S. Trade Representative determined to establish a process by which particular products
classified in heading 9903.88.03 and provided for in U.S. notes 20(e) and (f) to this subchapter
could be excluded from the additional duties imposed by heading 9903.88.03, and by which
particular products classified in heading 9903.88.04 and provided for in U.S. note 20(g) to this
subchapter could be excluded from the additional duties imposed by heading 9903.88.04. See 83
Fed. Reg. 47974 (September 21, 2018) and 84 Fed. Reg. 29576 (June 24, 2019). Pursuant to the
product exclusion process, the U.S. Trade Representative has determined that the additional duties
provided for in heading 9903.88.03 or in heading 9903.88.04 shall not apply to the following
particular products, which are provided for in the enumerated statistical reporting numbers:
***
(12) Synthetic silica gel, in granules measuring 0.25 to 0.6 mm in diameter, put up in retail
packaging, of a kind used for drying and preserving flowers (described in statistical reporting
number 2811.22.1000)
U.S. note 20(vv) to 9903.88.43, HTSUSA, states in pertinent part:
The U.S. Trade Representative determined to establish a process by which particular products
classified in heading 9903.88.03 and provided for in U.S. notes 20(e) and (f) to this subchapter
could be excluded from the additional duties imposed by heading 9903.88.03. See 83 Fed. Reg.
47974 (September 21, 2018) and 84 Fed. Reg. 29576 (June 24, 2019). Pursuant to the product
exclusion process, the U.S. Trade Representative has determined that the additional duties
provided for in heading 9903.88.03 shall not apply to the following particular products, which are
provided for in the enumerated statistical reporting numbers:
***
(12) Synthetic silica gel, in amorphous granules, of a kind used as a catalyst support (described in
statistical reporting number 2811.22.1000)
* * * * *
There is no dispute as to the classification of the silica gel under heading 2811, HTSUS,
and under subheading 2811.22.1000, HTSUSA, as “Other inorganic acids and other inorganic
oxygen compounds of nonmetals: Other inorganic oxygen compounds of nonmetals: Silicon
dioxide: Synthetic silica gel.” Additionally, the Protestant neither disputes that the silica gel is a
product of China nor that additional duties under heading 9903.88.03, HTSUS, apply. Articles
from China are subject to classification under heading 9903.88.03, HTSUSA, and have an
additional rate of duty applied depending upon the exact classification of the article. In this case,
the items classified under subheading 2811.22.1000, HTSUSA, fall under the provisions of U.S.
note 20(f) to chapter 99. The only remaining consideration is whether the silica gel also falls
under a section 301 exclusion.
GRI 1 requires that the subject merchandise meet the terms of the relative chapter notes.
The scope of each exclusion from Section 301 duties is governed by the product descriptions set
forth in the Annex. See 85 FR 17158 (August 7, 2020) and 85 FR 6674 (February 5, 2020); see
also Headquarters Ruling Letter (“HQ”) H323452, dated July 18, 2023 (examining the scope of a
computer mouse exclusion to Section 301 duties). The determinative issue in this AFR is
4
whether the subject silica gel falls within the scope and terms of U.S. note 20(qq)(12) of heading
9903.88.38, HTSUS, or U.S. note 20(vv)(12) of heading 9903.88.43, HTSUS.
In the absence of a definition of a term in the HTSUS or ENs, the term’s correct meaning
is its common and commercial meaning. The common and commercial meaning may be
determined by consulting dictionaries, lexicons, scientific authorities, and other reliable sources.
The criteria enumerated in U.S. note 20(qq)(12) of chapter 99 requires that a product be
(1) Synthetic silica gel, (2) in granules measuring 0.25 to 0.6 mm in diameter, (3) put up in retail
packaging, and (4) of a kind used for drying and preserving flowers. When presented with tariff
provisions that direct the merchandise be “of a kind used for . . .,” CBP interprets that phrase to
require such merchandise to belong to the same kind or class of goods, in this case, “used for
drying and preserving flowers.” In United States v. Carborundum Co., 536 F.2d 373, 377
(C.C.P.A. 1976) (Carborundum), the court stated that in order to determine whether an article is
included in a particular class or kind of merchandise, the court must consider a variety of factors,
including: (1) the general physical characteristics of the merchandise; (2) the channels, class or
kind of trade in which the merchandise moves (where the merchandise is sold); (3) the
expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying
accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines
the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade
of this use.
Ultra Art Crystals are of a Kind Used for Drying and Preserving Flowers
CBP has no reason to doubt that the Ultra Art Crystals are synthetic silica gel in granules
measuring 0.25 to 0.6 mm in diameter. Furthermore, the Ultra Art Crystals are put up in retail
packaging. Finally, the retail packaging, provided in the AFR, clearly states that the silica gel
crystals are for flower drying and provide clear instructions on using Ultra Art Crystals for the
purpose of drying flowers. Applying the Carborundum factors we note:
(1) The Ultra Art Crystals are silica gel that can desiccate flowers and this weighs in
favor of finding the Ultra Art Crystals are of a kind used for drying and preserving
flowers.
(2) While it is difficult to determine where the Ultra Art Crystals are physically sold,
online websites such as Amazon and Ultra Pet appear to sell Ultra Art Crystals as “art
crystals” or a unique art supply category which weighs in favor of finding the Ultra Art
Crystals are of a kind used for drying and preserving flowers. 1
(3) The clear packaging and advertisement of the Ultra Art Crystals being for the
preservation of flowers suggests the ultimate purchaser would conclude the silica gel is
for the drying and preserving of flowers. This factor weighs in favor of finding the Ultra
Art Crystals are of a kind used for drying and preserving flowers.
1
See Amazon, ULTRA Art Crystals, visited July 1, 2024, https://www.amazon.com/Ultrapet-40005-Ultra-Art-
Crystals/dp/B09SZQLV9K (advertising the model’s name as “Art Crystals”); UltraPet, Ultra Art Crystals, visited July
1, 2024, https://ultrapet.com/ultra-art/.
5
(4) While there do not appear to be any accessories associated with the Ultra Art Crystals,
the packaging and marketing clearly state the silica gel is for the preservation of flowers.
This factor weighs in favor of finding the Ultra Art Crystals are of a kind used for drying
and preserving flowers.
(5) The drying and preserving of flowers with silica gel is a fairly simple process, which
basically involves the submersion of the selected flowers in the gel, and the Ultra Art
Crystals may be used in the same manner as other silica gel used for the drying and
preserving of flowers. This factor weighs in favor of finding the Ultra Art Crystals are of
a kind used for drying and preserving flowers.
(6) Although no accessories necessary for the drying and preserving of flowers
accompany the Ultra Art Crystals, the product appears to be sold for roughly the same or
lower price than other silica gel products advertised for the drying and preserving of
flowers. 2 As such, it is economically practical to use the Ultra Art Crystals for the drying
and preserving of flowers and this factor weighs in favor of finding the Ultra Art Crystals
are of a kind used for drying and preserving flowers.
(7) Silica gel is universally recognized for its use drying and eliminating moisture. This
factor weighs in favor of finding the Ultra Art Crystals are of a kind used for drying and
preserving flowers.
Altogether, the Carborundum factors weigh in favor of finding the Ultra Art Crystals are
of a kind used for the drying and preserving flowers. As such, the Ultra Art Crystals meet the
four criteria of U.S. note 20(qq)(12) of chapter 99.
Ultra Micro Crystals are not of a Kind Used for Drying and Preserving Flowers
The Ultra Micro Crystals are a separate matter. CBP has no reason to doubt the Ultra
Micro Crystals are silica gel in granules measuring 0.25 to 0.6 mm in diameter. Further the Ultra
Micro Crystals are put up in retail packaging. However, the packaging, provided in the AFR, of
the Ultra Micro Crystals clearly and prominently indicates that the silica gel is for cat litter. The
packaging provides endorsements of the silica gel as cat litter, clear instructions on the using the
silica gel as cat litter, and warnings concerning the use of the silica gel as cat litter. The left-side
panel of the packaging presents an alternative use for the Ultra Micro Crystals, to dry flowers,
and that other additional uses could be found at a certain web address. Without the left-side
2
Compare Amazon, ULTRA Art Crystals, visited July 1, 2024, https://www.amazon.com/Ultrapet-40005-Ultra-Art-
Crystals/dp/B09SZQLV9K (pricing the five pound product bag at $8.07); with Amazon, 5LBS(2.27Kg) Silica Gel
Flower Drying Crystals, visited July 1, 2024, https://www.amazon.com/Fonday-Crystals-Container-Indicating-
Reusable/dp/B0BJNMN6DP/ref=sr_1_1_sspa?dib=eyJ2IjoiMSJ9.qOZZoIcS9ykykheFHOcpDfImmVA48lV2Ssxhg
pJbrG09gKw1wBHFFAEc70tIF7NPb9MpRQxX9EPuWrbJklNIj-EXP1yRX_8JHpWr-
LmvFROEcdSsCEIMLP92bZ8ErR-qcqmgsTuRBc4qD6uLsoVNLJSyVmiYs8mfuDlIj5r9Q7_MWDAWn-
7O_GwSwMGX1S-CKneCcE11TzNwHd0PsntLXXx7Mda6_QYD5vk8lfm9XMM.M8Qdr8pAdFr_FJb5w-
G_vjl7E28gpWuz38cSwaXef7Y&dib_tag=se&keywords=flower+drying&qid=1719856130&sr=8-1-
spons&sp_csd=d2lkZ2V0TmFtZT1zcF9hdGY&psc=1/ (pricing a five pound product bag, a sealed container, and
brush as $29.99).
6
panel there is no question Ultra Micro Crystals would not meet the criteria of U.S. note
20(qq)(12). See HQ H312361, dated August 21, 2023 (holding that explicit guidance concerning
specific packaging requirements is dispositive for classification). To determine whether the
Ultra Micro Crystals are of a kind used for drying and preserving flowers, CBP must again
examine the Carborundum factors:
(1) The Ultra Micro Crystals are silica gel that can desiccate flowers and this weighs in
favor of finding the Ultra Micro Crystals are of a kind used for drying and preserving
flowers.
(2) The Ultra Micro Crystals are sold, at least, in Walmart and on online platforms hosted
by Amazon and Walmart. In both venues, the Ultra Micro Crystals are sold alongside
other cat litters. 3 The merchandise is advertised and sold alongside other cat litter and
there is no mention of the product’s use in the drying and preserving of flowers. As such,
this factor does not weigh in favor of finding the Ultra Micro Crystals are of a kind used
for drying and preserving flowers.
(3) The clear packaging and advertisement of the Ultra Micro Crystals as cat litters
suggests the ultimate purchaser would conclude the silica gel is to be used as cat litter.
This factor does not weigh in favor of finding the Ultra Micro Crystals are of a kind used
for drying and preserving flowers.
(4) There are no accessories associated with the Ultra Micro Crystals and the packaging
and marketing clearly state the silica gel is to be used as cat litter. The online markets
clearly associate Ultra Micro Crystals with other cat litters and the images provided of the
packaging, on the online markets, do not even show the left side panel to virtual
purchasers. Simply put, online retailers do not indicate Ultra Micro Crystals may be used
for the drying and preserving of flowers. 4 This factor does not weigh in favor of finding
the Ultra Micro Crystals are of a kind used for drying and preserving flowers.
(5) Silica gel is a known desiccant and commonly used for that purpose in multiple
applications. Silica gel as cat litter and for the drying and preserving of flowers preforms
the same basic function, to remove moisture. Further, both cat litter and flower
desiccants generally must be placed in shallow bins to perform their respective functions.
However, the similarities between the usage of cat litter and flower desiccants end there.
Cat litter is formulated with the animal that will use the litter in mind. For example, litter
3
See Amazon, Ultra Micro Crystals Cat Litter 5 pounds, visited July 1, 2024, https://www.amazon.com/Ultra-
Micro-Crystals-Litter-pounds/dp/B0030HO67I/ref=sr_1_1?crid=E5EMJN9XOBT&dib=eyJ2IjoiMSJ9.-
3JwbOjBwu0mtmL9XD4ho-BqE-bNP3byo-KTJYZ-
y1RGDAdIituCurm5v67vAWCiMRyQnQ0u8imZRmL8zOg10BJY-
j9ZieqrKza0bMs1ZitW4RGHePIuEyQDtRkyZp74jG6iPhq79o8IF9_cI2UQ70oCPaBDm5g9p80-
zL5ZNbnumMXXwDs6TLVskzoNJ4LtKgsLpJ_JAquTAHSXUwHeGaLdsS1cVy3kpA--
J7560btsyiqYhABdSHyLZlXvS2OXOTVuXUoQ9Sb1edXakgHaUJR1uq46AACwIjS_ayUtfLI.o9GTODfpY_WCp
Z2D9QqhX9RANk73km7mm2rOSCMiNPo&dib_tag=se&keywords=ultra%2Bmicro%2Bcrystals&qid=171985902
7&sprefix=ultra%2Bmicro%2Bcrystal%2Caps%2C884&sr=8-1&th=1; Walmart, Ultra Micro Crystals Cat Litter, 5-
lb, visited July 1, 2024, https://www.walmart.com/ip/Ultra-Micro-Crystals-Cat-Litter-5-Lb/944399243.
4
See Note 3, Supra.
7
is formulated to be non-toxic, eliminate or reduce orders, and facilitate removal of pet
waste based on the clumping capabilities of the litter. Flower desiccants need not be
formulated to address the same concerns. Flower desiccants are designed preserve
delicate flowers and maintain colors. This factor does not weigh in favor of finding the
Ultra Micro Crystals are of a kind used for drying and preserving flowers.
(6) The Amazon online market sells Ultra Micro Crystals for around $16.99 for a five-
pound bag, and the Walmart online market sells Ultra Micro Crystals for around $28 for a
five-pound bag. 5 Ultra Micro Crystals is sold in the same range of prices as other cat
litters. 6 As explored above, the prices for flower drying and preserving kits generally
appear in roughly the same price range. It is economically practical to use the Ultra
Micro Crystals as cat litter and for the drying and preserving of flowers. However, CBP
must note that the Ultra Art Crystals, which are explicitly advertised for the drying and
preserving of flowers are sold for half as much ($8.07 per five-pound bag) as a five-
pound bag of Ultra Micro Crystals. 7 Therefore, this factor weighs slightly in favor of
finding the Ultra Art Crystals are of a kind used for drying and preserving flowers.
(7) Silica gel is universally recognized for its use drying and eliminating moisture. This
factor weighs in favor of finding the Ultra Micro Crystals are of a kind used for drying
and preserving flowers.
The exclusion makes clear that the silica gel must be “of a kind used for drying and
preserving flowers.” Altogether the Carborundum factors do not weigh in favor of finding the
Ultra Micro Crystals are “of a kind used for drying and preserving flowers.” Nearly every aspect
of packaging presented for the Ultra Micro Crystals is dedicated to advertising the use of the
silica gel as cat litter. Only a small square, that occupies less than half of the small left-side
panel, suggests an additional use, the drying and preserving of flowers, for the silica gel. The
purpose of retail packaging is to inform the end user of the article they are buying and its proper
use. The side panel is an afterthought compared to the primary advertising and trade dress of the
silica gel as cat litter and the online markets do not even display or reference the Ultra Micro
5
Id
6
Compare Amazon, Ultra Micro Crystals Cat Litter 5 pounds, visited July 1, 2024, https://www.amazon.com/Ultra-
Micro-Crystals-Litter-pounds/dp/B0030HO67I/ref=sr_1_1?crid=E5EMJN9XOBT&dib=eyJ2IjoiMSJ9.-
3JwbOjBwu0mtmL9XD4ho-BqE-bNP3byo-KTJYZ-
y1RGDAdIituCurm5v67vAWCiMRyQnQ0u8imZRmL8zOg10BJY-
j9ZieqrKza0bMs1ZitW4RGHePIuEyQDtRkyZp74jG6iPhq79o8IF9_cI2UQ70oCPaBDm5g9p80-
zL5ZNbnumMXXwDs6TLVskzoNJ4LtKgsLpJ_JAquTAHSXUwHeGaLdsS1cVy3kpA--
J7560btsyiqYhABdSHyLZlXvS2OXOTVuXUoQ9Sb1edXakgHaUJR1uq46AACwIjS_ayUtfLI.o9GTODfpY_WCp
Z2D9QqhX9RANk73km7mm2rOSCMiNPo&dib_tag=se&keywords=ultra%2Bmicro%2Bcrystals&qid=171985902
7&sprefix=ultra%2Bmicro%2Bcrystal%2Caps%2C884&sr=8-1&th=1 with Amazon, Little Pearls Crystal Cat Litter,
visited July 1, 2024,
https://www.amazon.com/dp/B09S4TJHKK/ref=sspa_dk_detail_3?pd_rd_i=B09S4TJHKK&pd_rd_w=d1eKS&cont
ent-id=amzn1.sym.50caf0e5-6f9a-44ba-90d0-c83e04479868&pf_rd_p=50caf0e5-6f9a-44ba-90d0-
c83e04479868&pf_rd_r=H71JSHKNYMVYZ0CVZFWD&pd_rd_wg=CXZNC&pd_rd_r=e5490266-f7ab-420a-
8a4f-8b650c62930e&s=pet-supplies&sp_csd=d2lkZ2V0TmFtZT1zcF9kZXRhaWxfdGhlbWF0aWM&th=1 (selling
a seven-pound bag for $24.99).
7
See Amazon, ULTRA Art Crystals, visited July 1, 2024, https://www.amazon.com/Ultrapet-40005-Ultra-Art-
Crystals/dp/B09SZQLV9K (pricing the five pound product bag at $8.07).
8
Crystals use for the drying and preserving of flowers. CBP finds that the Ultra Micro Crystals do
not meet the final criteria and do not qualify for U.S. note 20(qq) (12) of Chapter 99, HTSUS.
No Information Was Provided to Determine Whether the Products are Catalyst
Supports
The criteria enumerated in U.S. note 20(vv)(12) of chapter 99 requires that a product be
(1) Synthetic silica gel, (2) in amorphous granules, and (3) of a kind used as a catalyst support.
CBP has no reason to doubt the Ultra Art Crystals and Ultra Micro Crystals are synthetic silica
gel and with amorphous shapes. As explained above “of a kind . . .” requires a Carborundum
factor analysis to determine whether Ultra Art Crystals and Ultra Micro Crystals are of a
particular class or kind of merchandise, namely catalyst supports. According to the International
Union of Pure and Applied Chemistry, in chemistry, a catalyst support, or carrier, is the material
to which a catalyst is affixed and may be inert or contribute to the overall reaction. S. J. CHALK,
IUPAC, COMPENDIUM OF CHEMICAL TERMINOLOGY (2nd ed. 2019) (the “Gold Book”),
https://doi.org/10.1351/goldbook (last visited April 18, 2025). The AFR and the Protestant
provide no evidence nor does the record reflect that the subject silica gel is used or would be
used as a catalyst support in chemistry applications. In fact, the Protestant only cursorily states
the silica gel is “of a kind used as a catalyst support” and provides no evidence or argument to
support that statement. However, the exact nature of silica gel determines its suitability as a
catalyst support in chemistry applications, including, but not limited to, its particle size, shape,
porosity, pore diameters, and surface area. CBP does not have that information and the first,
sixth, and seventh Carborundum factors cannot be analyzed. Additionally, the remaining
Carborundum factors two, three, four, and five, addressed more fully above, do not weigh in
favor of finding that either the Ultra Art Crystals or the Ultra Micro Crystals are of a kind used
as a catalyst support. Therefore, CBP cannot determine whether either product is a catalyst
support. As such, this Section 301 exclusion is not applicable to either the Ultra Art Crystals or
the Ultra Micro Crystals because neither meets the use criteria.
Addressing Protestant’s Other Arguments
The AFR highlights that the silica gel used for the drying and preserving of flowers
(Ultra Art Crystals) is the same and interchangeable with the silica gel used in cat litter (Ultra
Micro Crystals). Further the Protestant highlights that the “use” as a desiccant, of the silica gel
in in the Ultra Art Crystals and Ultra Micro Crystals is the same. The Protestant concludes that
silica gel used for the drying of flowers is of the “same class or kind” as the silica gel used in cat
litter and should receive the same duty remedy. The Protestant’s assertions do not overcome the
plain language of U.S. note 20(qq)(12) and 20(vv)(12) nor the packaging the Protestant has
chosen for its products. See Carborundum, 536 F.2d at 377 (“Susceptibility, capability,
adequacy, or adaptability of the import to the common use of the class is not controlling.”). The
existence of both exclusions demonstrates that all silica gel cannot be considered interchangeable
for application of a duty exclusion, nor was there an intention to create a single “catch-all”
exemption for silica gel. As such, to fall under an exemption, silica gel must meet all of the
criteria provided in the notes of chapter 99. The Ultra Art Crystals meet the criteria of U.S. note
20(qq)(12) of chapter 99 specifically because the synthetic silica gel is packaged and intended to
be used for the drying and preserving of flowers. The Ultra Micro Crystals do not meet the
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criteria of U.S. note 20(qq)(12) of chapter 99, because its packaging clearly directs its use as a
cat litter, nor does the product meet the criteria of U.S. note 20(vv)(12) of chapter 99. The
presented fungibility of silica gel does not change the fact that the packaging of the Ultra Micro
Crystals presents a cat litter product nor is it evidence that the Ultra Micro Crystals will be or can
be used as a catalyst support.
HOLDING:
By application of GRI 1 and GRI 6, Ultra Art Crystals and the Ultra Micro Crystals are
classified in heading 2811, HTSUS, specifically in subheading 2811.22.1000, HTSUSA, which
provides for “Other inorganic acids and other inorganic oxygen compounds of nonmetals: Other
inorganic oxygen compounds of nonmetals: Silicon dioxide: Synthetic silica gel.” Between
April 05, 2019, and August 6, 2020, the column one, general rate of duty was 3.7 percent ad
valorem.
Pursuant to U.S. note 20 to subchapter III, chapter 99, HTSUS, products of China
classified in subheading 2811.22.1000, HTSUSA, unless specifically excluded, are subject to an
additional 25 percent ad valorem rate of duty under heading 9903.88.03, HTSUS. However, the
subject Ultra Art Crystals are accurately described under U.S. note 20(qq)(12) to chapter 99,
subchapter III, HTSUS, which provides a description for “[s]ynthetic silica gel, in granules
measuring 0.25 to 0.6 mm in diameter, put up in retail packaging, of a kind used for drying and
preserving flowers (described in statistical reporting number 2811.22.1000).” Only the Ultra Art
Crystals meet the terms of the exclusion language and therefore qualify for the claimed exclusion
under secondary tariff number 9903.88.38, HTSUS.
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 https://hts.usitc.gov/current.
You are instructed to GRANT the protest concerning any imports of the Ultra Art
Crystals, and to DENY the protest concerning imports of the Ultra Micro Crystals.
You are instructed to notify the Protestant of this decision no later than 60 days from the
date of this decision. Any reliquidation of the entry or entries in accordance with the decision
must be accomplished prior to this notification. Sixty days from the date of the decision, the
Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and
to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/,
which can be found on the CBP website at http://www.cbp.gov and other methods of public
distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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