Degussa Corp. v. U.S.
| Citation | 452 F.Supp.2d 1310 |
| Decision Date | 18 August 2006 |
| Docket Number | Slip Op 06-127. Court No. 98-05-01598. |
| Parties | DEGUSSA CORPORATION, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Barnes, Richardson & Colburn, New York City, (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.
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 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.
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.
Any doubt post trial herein is thus engendered by the law that governed their classification upon import. The gist of plaintiffs 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....
Plaintiffs 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.
Small deviations in the stoichiometric ratios can occur because of gaps or insertions in the crystal lattice. These compounds are described as quasistoichiometric 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 ___, ___, 2006 WL 1359965 (CIT 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 ___, ___, 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 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, 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, 941 F.Supp. 139, 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.
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.
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.
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, AERSIL® 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...
To continue reading
Request your trial
-
Degussa Corp. v. U.S.
...Heading 2811 of the HTSUS, which provides for "Silicon dioxide: Other" and are not subject to a duty tax. See Degussa Corp. v. United States, 452 F.Supp.2d 1310 (C.I.T.2006). The government appealed. We conclude that because Degussa's products contain certain impermissible impurities, they ......