Slip Op. 06 - 127
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - -x
DEGUSSA CORPORATION, :
Plaintiff, :
v. : Court No. 98-05-01598
UNITED STATES, :
Defendant. :
- - - - - - - - - - - - - - - - - - x
Opinion
[Upon classification of certain synthetic
silicon dioxide powders, judgment for
the plaintiff.]
Decided: August 18, 2006
Barnes, Richardson & Colburn (Rufus E. Jarman and Kevin J.
Sullivan) for the plaintiff.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Bruce N. Stratvert); and Office of Assistant Chief
Counsel, International Trade Litigation, U.S. Bureau of Customs and
Border Protection (Chi S. Choy), of counsel, for the defendant.
AQUILINO, Senior Judge: This action, which has been
designated a test case within the meaning of CIT Rule 84(b), causes
the court to decide whether the Harmonized Tariff Schedule of the
United States (“HTSUS”) requires consideration of the surface
chemistry of silicon dioxide in order to be classifiable as such
Court No. 98-05-01598 Page 2
under HTSUS heading 2811 (“Other inorganic acids and other
inorganic compounds of nonmetals”), in particular, subheading
2811.22.50 (“Silicon dioxide: . . . Other”), which substance enters
free of duty.
In this test case, the U.S. Customs Service, as it was
then still known, may have attempted to take that chemistry into
account1 in determining to classify plaintiff’s goods under HTSUS
heading 3824, to wit,
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;
residual products of the chemical or allied industries,
not elsewhere specified or included [. . .,]
subject to duty of 5 percent ad valorem per subheading 3824.90.90
(1997) thereunder. Whatever the Service’s initial reasoning, a
clear preponderance of the evidence adduced at trial confirmed that
the merchandise is in fact silicon dioxide . . . other, produced
synthetically, which defendant’s expert witness characterized on
direct examination as “marvelous products”2.
I
Any doubt post trial herein is thus engendered by the law
that governed their classification upon import. The gist
1
Cf. Defendant United States’ Proposed Findings of Fact and
Conclusions of Law, Exhibit 1.
2
Transcript of trial (“Tr.”), p. 396. Cf. id. at 370.
Court No. 98-05-01598 Page 3
of plaintiff’s position is that HTSUS subheading 2811.22.50 is an
eo nomine provision and that it is
well established that [such] a . . . provision includes
all forms of the named article unless limited by its
terms, or contrary to legislative intent, judicial
decisions, long standing administrative practice, or
demonstrated commercial designation. . . . Neither the
tariff, the legislative history nor judicial decision
limit the application of Subheading 2811.22. As the
tariff does not define the term “silicon dioxide”, this
Court should interpret such term to incorporate all forms
of silicon dioxide that fall within the term’s common and
commercial meaning. . . . [T]he articles involved
herein are forms of synthetic silicon dioxide and fall
within both the common and commercial meaning of such
term. . . .
Plaintiff’s Post Trial Brief, pp. 6-7 (citations omitted).
HTSUS General Rule of Interpretation 1 is that
classification shall be determined according to the terms of the
chapter headings and any relative section or chapter notes. Note
1(a) provides that Chapter 28 applies only to separate chemical
elements and separate chemically defined compounds, whether or not
containing impurities. The general note to this chapter adds:
A separate chemically defined compound is a
substance which consists of one molecular species (e.g.,
covalent or ionic) whose composition is defined by a
constant ratio of elements and can be represented by a
definitive structural diagram. In a crystal lattice, the
molecular species corresponds to the repeating unit cell.
The elements of a separate chemically defined
compound combine in a specific characteristic proportion
determined by the valency and the bonding requirements of
the individual atoms. The proportion of each element is
constant and specific to each compound and it is
therefore said to be stoichiometric.
Court No. 98-05-01598 Page 4
Small deviations in the stoichiometric ratios can
occur because of gaps or insertions in the crystal
lattice. These compounds are described as quasi-
stoichiometric and are permitted as separate chemically
defined compounds provided that the deviations have not
been intentionally created.
Moreover, there are explanatory notes to the HTSUS which are not
legally binding but which may be consulted for guidance and are
generally indicative of the proper interpretation of its various
provisions. See, e.g., Motorola, Inc. v. United States, 436 F.3d
1357, 1361 (Fed.Cir. 2006); Arbor Foods, Inc. v. United States, 30
CIT ___, ___, Slip Op. 06-74, p. 5 (May 17, 2006); Avenues in
Leather, Inc. v. United States, 423 F.3d 1326, 1334 (Fed.Cir.
2005); Simon Marketing, Inc. v. United States, 29 CIT ___, ___, 395
F.Supp.2d 1280, 1287 (2005); Bauer Nike Hockey USA, Inc. v. United
States, 393 F.3d 1246, 1250 (Fed.Cir. 2004); ABB, Inc. v. United
States, 28 CIT ___, ___ and 346 F.Supp.2d 1357, 1361 n. 3 (2004);
Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 n. 3
(Fed.Cir. 2003); Filmtec Corp. v. United States, 27 CIT ___, ___,
293 F.Supp.2d 1364, 1369 (2003); Jewelpak Corp. v. United States,
297 F.3d 1326, 1338 (Fed.Cir. 2002); Boen Hardwood Flooring, Inc.
v. United States, 26 CIT 253, 257, 196 F.Supp.2d 1331, 1337 (2002);
General Elec. Company-Medical Systems Group v. United States, 247
F.3d 1231, 1236 (Fed.Cir. 2001); Carrini, Inc. v. United States, 25
CIT 857, 860 (2001); JVC Co. of America v. United States, 234 F.3d
Court No. 98-05-01598 Page 5
1348, 1352-53 (Fed.Cir. 2000); Ero Industries, Inc. v. United
States, 24 CIT 1175, 1180, 118 F.Supp.2d 1356, 1360 (2000); Carl
Zeiss, Inc. v. United States, 195 F.3d 1375, 1378 n. 1 (Fed.Cir.
1999); North American Processing Co. v. United States, 23 CIT 385,
2387 and 56 F.Supp.2d 1174, 1176 n. 5 (1999); EM Industries, Inc.
v. United States, 22 CIT 156, 162, 999 F.Supp. 1473, 1478 (1998);
Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423, 1428
(Fed.Cir. 1997); H.I.M./Fathom, Inc. v. United States, 21 CIT 776,
779, 981 F.Supp. 610, 613 (1997); Verosol USA, Inc. v. United
States, 20 CIT 1251, 1252 and 941 F.Supp. 139, 140 n. 5 (1996);
Totes, Inc. v. United States, 69 F.3d 495, 500 (Fed.Cir. 1995);
Marubeni America Corp. v. United States, 35 F.3d 530, 535 n. 3
(Fed.Cir. 1994); Beloit Corp. v. United States, 18 CIT 67, 80, 843
F.Supp. 1489, 1499 (1994); THK America, Inc. v. United States, 17
CIT 1169, 1175, 837 F.Supp. 427, 433 (1993); Lynteq, Inc. v. United
States, 976 F.2d 693, 699 (Fed.Cir. 1992).
The explanatory notes to chapter 28, HTSUS confirm that
silicon dioxide is an inorganic oxygen compound of a nonmetal and
state further:
(M) SILICON COMPOUNDS
Silicon dioxide (pure silica, silicic anhydride,
etc.)(SiO2). Obtained by treating silicate solutions
with acids, or by decomposing silicon halides by the
action of water and heat.
Court No. 98-05-01598 Page 6
It can be either in amorphous form (as a white
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).
Silica resists the action of acids; fused silica is
therefore used to make laboratory apparatus and
industrial equipment which can be suddenly heated or
cooled without breaking (see General Explanatory Note to
Chapter 70). Finely powdered silica is used as an
extender in the manufacture of paints and as a filler for
lakes. Activated silica gel is employed to dry gases.
The heading excludes:
(a) Natural silica (Chapter 25, except varieties
constituting precious or semi-precious stones - see
the Explanatory Notes to headings 71.03 and 71.05).
(b) Colloidal suspensions of silica are generally
classified in heading 38.24 unless specially
prepared for specific purposes (e.g., as textile
dressings of heading 38.09).
(c) Silica gel with added cobalt salts (used as a
humidity indicator)(heading 38.24).
Boldface in original.
A
The court’s jurisdiction in this matter is based upon 28
U.S.C. §§ 1581(a), 2631(a), and the trial proceeded pursuant to a
pretrial order that set forth the following as uncontested facts:
1. The word “silica” denotes the compound silicon
dioxide, SiO2, and encompasses various forms, including
crystalline silicas, vitreous silicas and amorphous
silicas.
Court No. 98-05-01598 Page 7
2. The basic structural unit of silica is a
tetrahedral arrangement of four oxygen atoms surrounding
a central silicon atom. The SiO2 stoichiometry requires
that on average each oxygen must be shared by silicons in
two tetrahedra.
3. Amorphous silicas include precipitated silicas,
silica gels, and pyrogenic silicas.
4. Pyrogenic silicas, also known as fumed silicas,
are fluffy white powders consisting of approximately
spherically shaped particles.
5. Fumed silica is produced by flame hydrolysis of
silicon tetrachloride (SiCl4) in an oxygen-hydrogen gas
flame. The result is an extremely fine particle of
silicon dioxide. The by-product of this process is
predominantly hydrogen chloride plus some water vapor.
6. Alternatively, the fumed silica can be produced
by flame hydrolysis of organosilanes in an oxygen-
hydrogen gas flame. In this case, carbon dioxide is a
by-product.
7. Fumed silica particles form aggregates and
larger, loose, network structures known as agglomerates.
8. The products at issue in this case are AEROSIL®
R202, AEROSIL® R805, AEROSIL® R812, AEROSIL® R812S,
AEROSIL® R972, AEROSIL® US202, AEROSIL® US204, AEROSIL®
R104, and AEROSIL® R976.
9. The surface of silica contains two functional
groups: siloxane groups and silanol groups (Si-OH) where
the silanol groups arise from the interaction with water
vapor.
10. Siloxane groups are largely inert chemically
and have a mild hydrophobic nature in terms of being able
to disperse in either water or organic solvents.
11. Silanol groups are “water attractive” and
adsorb water vapor well. Thus, they are hydrophilic in
nature.
Court No. 98-05-01598 Page 8
12. Immediately after production of AEROSIL®, the
silanol groups on the surface of the silica particle are
mainly isolated. Upon exposure to water vapor, adsorbed
water groups from the air react with strained siloxane
groups and form bridged silanol groups.
13. Due to the presence of the silanol groups on
the surface of silica particles, the standard AEROSIL®
silica is hydrophilic.
14. To produce surface-treated silica, some of the
silanol groups on the surface of the silica particle are
reacted with silanes such as dimethyldichlorosilane,
hexamethyldisilazane, trimethylozyoctylsilane or with
silicone oil as part of the continuous, manufacturing
process.
15. Surface treatment reduces the silanol groups to
about 30% of the initial value, the exact amount
depending on the surface treatment.
16. The products at issue are not separate chemical
elements.
17. The compounds in issue are not quasi-
stoichiometric.
What was confirmed or added at trial to these stipulated
facts is that each AEROSIL® at issue is hydrophobic. See, e.g., Tr.
at 63; Plaintiff’s Exhibit 6, p. 40. Cf. Tr. at 137-39. Each is
manufactured by flame hydrolysis of silicon tetrachloride in an
oxygen-hydrogen gas flame. See id. at 19, 125; Plaintiff’s Exhibit
6, p. 11 and Exhibit 20, p. 4. Each is at least 99.8 percent
amorphous silicon dioxide. See Plaintiff’s Exhibit 6, p. 79;
Exhibit 19, second page; Exhibits 32, 33, 34, 35, 36, 37, 38, 39,
40. Compare Tr. at 82 with id. at 153-54 and at 284-88 and at 371.
Court No. 98-05-01598 Page 9
Each product is a white, fluffy powder consisting of spherically-
shaped particles. See Plaintiff’s Exhibit 20, pp. 4-5. Each
primary particle encompasses some 10,000 SiO2 units. See
Plaintiff’s Exhibit 6, p. 24. Those particles form the aggregates
and the agglomerates. See Tr. at 46.
The fumed silica has a basic structure of silicon and
oxygen atoms in a tetrahedral arrangement where four oxygen atoms
surround a central silicon atom. See id. at 160-61; Plaintiff’s
Exhibit 6, p. 17. As initially produced, at the surface of each
silica particle are silicon and oxygen atoms with unfilled chemical
bonds and valences capable of reaction in their ambient environment.
See Tr. at 28, 252, 417. That reaction can be with water vapor
engendered by the oxygen-hydrogen gas flame. See id. at 28, 269.
When that is the reaction, the result is a product surface that
contains inert siloxane groups (Si-O-Si) and active silanol groups
(SiOH).3 When that is the reaction, the result is hydrophilic.
The plaintiff produces the AEROSIL® at issue herein via
reactions with the substances set forth in stipulated paragraph 14,
3
See Tr. at 28, 251; Plaintiff’s Exhibit 8, p. 2. Silanol is
a “member of the family of compounds whose structure contains a
silicon atom that is bound directly to one or more hydroxyl
groups.” McGraw Hill Dictionary of Scientific and Technical Terms,
p. 1824 (5th ed. 1994). A hydroxyl group is an oxygen atom bonded
to an atom of hydrogen. See id. at 972-73.
Court No. 98-05-01598 Page 10
supra. See id. at 31; Plaintiff’s Exhibit 18, second page. They
block the formation of additional silanol groups on the silica
surface which would otherwise result from exposure to the ambient
environment. See Tr. at 27-28, 31, 240. Depending on the silane
used, the residual silanol groups can range from 30 to 70 percent
of the original number on an untreated surface. See id. at 30, 34,
85, 259; Plaintiff’s Exhibit 6, p. 55. They are needed for the
particular product’s intended performance. See Tr. at 35. Whatever
the precise treatment, however, does not affect the bulk of the
silica, which retains its regular SiO2 structure. See id. at 32,
269, 283. Cf. Plaintiff’s Exhibit 6, p. 55, fig. 58.
In the end, the record shows and the court finds that the
hydrophobic silica has lower moisture adsorption (or wettability)
that allows it to be incorporated into certain organic solvents and
polymers faster and easier than hydrophilic.
B
Given this evidence, the defendant points out, among
other things, that
the number of silo groups on the surface of the products
in issue may vary from particle to particle, or even from
batch to batch. Moreover, the products in issue do not
contain permissible “impurities,” in the form of the
hydrocarbon moieties, within the meaning of Chapter 28,
Note 1(a). The Explanatory Notes for Chapter 28, Chapter
Note 1, provide guidance as to the meaning of “impuri-
ties” in Note 1(a). . . . Significantly, here, the[y]
Court No. 98-05-01598 Page 11
. . . state that substances (from the manufacturing
process) are not in all cases to be regarded as
“impurities” permitted under Note 1(a). “When such
substances are deliberately left in the product with a
view to rendering it particularly suitable for specific
use rather than for general use, they are not regarded as
permissible impurities. . . .”[4]
[] Here, the carbon containing moieties in the
products in issue are deliberately incorporated in, and
left in, the products, with a view toward rendering them
particularly suitable for specific use.5
The court concurs. But the above-quoted law, on its face, does not
foreclose classification of plaintiff’s products under HTSUS
subheading 2811.22.50. They are fumed silicon dioxide with surface
silanol groups, albeit intentionally reduced in number. That
reduction has not left any of them within the purview of the three
specific exclusions of the foregoing explanatory note, neither (a)
natural silica nor (b) colloidal suspensions of silica nor (c)
silica gel. There is no exclusion of the carbon-containing moieties
added to their respective surfaces. Moreover, while it can be
argued, as the defendant does, that the “products in issue are
reaction products of silicon dioxide with other materials”6, counsel
have stipulated in the pretrial order, paragraph 17, that the
4
Supra note 1, p. 20, para. 5 (citation omitted, emphasis in
original).
5
Ibid., para. 6.
6
Id. at 21, para. 7.
Court No. 98-05-01598 Page 12
compounds in issue are not quasi-stoichiometric. Hence, they
are not within the meaning of the precluded “deviations [that] have
. . . been intentionally created” per general note 1 to HTSUS
chapter 28, supra.
The defendant refers to explanatory notes regarding
titanium oxides, number 28.23, and calcium carbonates, number
28.36. The first indicates that when titanium oxide is surface-
treated it falls under HTSUS heading 3206, not within chapter 28.
Note 28.36 advises that, when the particles of calcium carbonate
powder are coated with a water-repellant film, classification
should be under heading 3824, not 2836. Whatever the merit of
these attempted analogies, there is no such note for silicon
dioxide, the absence of which tends to support plaintiff’s
position.
II
Courts continuously remind parties to classification-of-
chemicals cases such as this that determination of the nature of a
good, in order to place it in the proper tariff category, is an
issue of fact. E.g., Metchem, Inc. v. United States, 30 CIT ___,
___, Slip Op. 06-105, p. 2 (July 14, 2006), and cases cited
therein. Here, the plaintiff has borne its burden of proving that
the bulk and the essence of each of its powders at issue are
Court No. 98-05-01598 Page 13
silicon dioxide, a separate chemically-defined compound. To find
otherwise would clearly run contrary to the weight of the evidence
on the record and convolute their correct classification:
You would have to torture something in chemistry to
try and make surfaces stoichiometric or to encompass them
totally in the definition of a bulk. . . .
Tr. at 45. See also id. at 108, 190-91, 194, 201, 202, 220, 229-
30, 237, 239, 240, 241, 253, 258, 262, 284-85, 322, 358, 411, 419,
420, 423-24, 426, 434-35, 437-38.
Judgment must therefore enter on behalf of the prevailing
party plaintiff.
Decided: New York, New York
August 18, 2006
/s/ Thomas J. Aquilino, Jr.
Senior Judge