Request for Further Review of Protest Number 1601-21-105798; Classification; Applicability of Section 301 Trade Remedies; Silica Gel.

H332948 August 25, 2025 OT:RR:CTF:CPMMA H332948 NAH CATEGORY: Classification TARIFF NO.: 2811.22.10; 9903.88.37 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 frontst panel presents the product name, a stylized cat, two endorsements (“soft on paws” and “1 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 price2 than other silica gel products advertised for the drying and preserving of flowers. 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 other cat litters.3 . In both venues, the Ultra Micro Crystals are sold alongside 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