H332948

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

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 Chin