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HQ 966576

February 19, 2004

CLA-2 RR:CR:GC 966576 NSH


TARIFF NO.: 3824.90.91

Port Director
Bureau of Customs and Border Protection
24735 East 75th Avenue
Ste# 100
Denver, CO 80249

RE: Protest 3307-03-100021; Silica mixed with hydrolysis products

Dear Port Director:

This is our decision on Protest 3307-03-100021, filed by counsel on behalf of Roche Colorado Corporation, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a silica mixed with various hydrolysis products.


Laboratory Report # NY 20032072, dated October 7, 2003, states, in pertinent part, the following:

The product consists of a reaction product in which the surface of the amorphous silica of varying particle sizes and porosity is reacted with a chemically defined organo-silicon product. The reaction product is an organic-surface modified [sic] silica for use in chromatography. In our opinion, varying amounts of the silica on the surface of the particle are reacted with the silane while the silica beneath the surface and varying amounts of the surface silica are not reacted.

Protestant describes the silica product as silicon dioxide that has been modified with the addition of a four-carbon chain or butyl group (C4). Protestant further states that it is a reaction product of synthetic silicia gel with dimethylbutylchlorosilane and trimethylchlorosilane that has been specialized for the purification of its pharmaceutical products.

The protest describes two entries, one on January 31, 2003 and one on March 24, 2003. Both entries were liquidated on May 2, 2003 under subheading 2931.00.90, HTSUS, the provision for “[o]ther organo-inorganic compounds: [o]ther: [o]ther: [o]rgano-silicon compounds.” This protest was timely filed on June 23, 2003.

Protestant claims classification under subheading 2811.22.10, HTSUS, or 2811.22.50, HTSUS, as silicon dioxide. The distinction between Protestant’s two suggested provisions regards defining the product as a “synthetic silica gel” or “other,” both of which describe silicon dioxide products.


What is the classification under the HTSUS of a silica mixed with various hydrolysis products?


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

Other inorganic acids and other inorganic oxygen compounds of nonmetals:

Other organo-inorganic compounds:

Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:

According to the Customs laboratory report, the silica is reacted with an identifiable organo-silicon product. The resultant product is describable as butychlorodimethyl silane reaction products with silica. This reaction is limited to various parts of the surface of the silica, leaving the subsurface of the particle unaffected.

Protestant states that the product is classified in heading 2811, HTSUS, as silicon dioxide; the entry was liquidated under heading 2931, HTSUS. However, heading 2811, HTSUS, applies exclusively to inorganic acids and other inorganic compounds of nonmetals. With the addition of the organo-silicon products, the resultant product is by definition no longer an inorganic chemical and therefore no longer silicon dioxide. As such, it is not classified under heading 2811, HTSUS.

In regard to heading 2931, HTSUS, whereat the product was liquidated, note 1(a) to chapter 29 states that the chapter applies only to separate chemically defined organic compounds, whether or not containing impurities. According to the Customs laboratory report, the product is a surface-modified amorphous silica. More specifically, the surface modification is characterized by the addition of hydrolysis products of butylchlorodimethyl silane. Due to the silica’s reaction with the hydrolysis products, the resulting product is not a separate chemically defined compound, but a mixture of both organic and inorganic compounds that is not covered under chapter 29.

This treatment of the silica cannot be considered an impurity that would cause it to be exempt from the applicable exclusions of chapter 28 or chapter 29, as stated above. The EN to chapter 28, General Note (A), states that the term impurity applies exclusively to substances whose presence in the single chemical compound results solely and directly from the manufacturing process. Impurities may include unconverted starting materials, impurities present in the starting materials, reagents used in the manufacturing process, or by-products. In this instance, the hydrolysis products are intentionally added to specialize the silica for the purification of pharmaceuticals. As a result of this intentional addition of hydrolysis products, the resulting product is no longer a separate chemically defined inorganic compound or a separate chemically defined organic compound. Accordingly, the silicate cannot be classified under either chapter 28 or chapter 29. Instead, mixtures of separate chemically defined organo-silicon compounds are classified under 3824.90.91, HTSUS, a residual subheading for chemical mixtures.


The merchandise is classified under subheading 3824.90.91 as “[p]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther.”

Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest in full.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director
Commercial Rulings Division

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