CLA-2: RR:CTF:TCM 967885 KSH
Port Director
U.S. Customs and Border Protection
Port of Cleveland
6747 Engle Road
Middleburg Heights, Ohio 44130-7939
RE: Application for Further Review of Protest 4101-05-100247
Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 4101-05-100247, filed by Degussa Initiators, Inc. The protest at issue is against Customs and Border Protection’s (CBP) rate advance on nine entries of “CH-50-WO” under subheading 3815.90.5000 of the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is identified as CH-50-WO. It is described as 1,1-Di (tert-butylperoxy) cyclohexane, non-aromatic cyclanic alcohol peroxide in a 50% white mineral oil diluent. The diluent is required for safety in transport. When the white mineral oil is added to the 1,1-Di(tert-butylperoxy) cyclohexane (“CH”), it becomes “CH-50-WO.” Protestant states that CH-50-WO is used commercially for the polymerization of monomers, crosslinking of polymers, curing of unsaturated polyester resins and graft polymerization.
A lab report issued by the CBP Laboratories and Scientific
Services on September 16, 2004, confirmed that the merchandise is a mixture of 1,1-Di(tert-butylperoxy) cyclohexane in white mineral oil. The report also determined that the CH-50-WO is a reaction initiator of the kind described in EN 3815(b)(i) as a free radical catalyst.
Protestant entered the merchandise subject to this protest free of duty in
subheading 2909.60.5000, HTSUS, which provides for: “Ethers, ether- alcohols, ether-phenols, ether-alcohol-phenols, alcohol peroxides, ether peroxides, ketone peroxides (whether or not chemically defined), and their halogenated, sulfonated, nitrated or nitrosated derivatives: Alcohol peroxides ether peroxides, ketone peroxides and their halogenated, sulfonated, nitrated or nitrosated derivatives: Aromatic: Other.” However, the merchandise was liquidated on April 15, 2005, under subheading 3815.90.5000, HTSUS, which provides for: “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Other” dutiable at 5% ad valorem.
Protestant filed a protest with an application for further review on April 25, 2005. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1). The AFR request was subsequently approved.
In support of protestant’s application for further review, protestant alleges that it involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Protestant has submitted additional factual information which was not previously considered when the merchandise was rate advanced. Accordingly, further review is warranted pursuant to 19 CFR §§174.24(c) and 174.25.
ISSUE: Whether CH-50-WO is classified in heading 2909, HTSUS, as a peroxide and its derivatives or heading 3815, HTSUS, as reaction initiator.
LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 GRI may then be applied.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Heading 2909, HTSUS, provides for “Ethers, ether- alcohols, ether-phenols, ether-alcohol-phenols, alcohol peroxides, ether peroxides, ketone peroxides (whether or not chemically defined), and their halogenated, sulfonated, nitrated or nitrosated derivatives.” Chapter 29 Note 1(e), HTSUS, provides for separate chemically defined organic compounds dissolved in solvents “provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific rather than for general use.” (Emphasis added).
Protestant argues that the diluent does not provide additional functionality to the 1,1-Di(tert-butylperoxy) cyclohexane but is present solely for safety in manufacturing, transport, handling and storage. As such, protestant states that the CH-50-WO is classified in heading 2909, HTSUS.
There is no dispute that the white mineral oil is added for reasons of safety or transport. However, in accordance with Chapter 29 Note 1(e), HTSUS, the addition of the white mineral oil must not also render the product particularly suitable for specific rather than for general use.
1,1-Di (tert-butylperoxy) cyclohexane is high in energy content and is available in various grades of purity. It may be mixed with varying percentages of differing diluents. The diluents are required for safety in transport but are also used to produce a specific type of polymer. The purity of the 1,1-Di(tert-butylperoxy) cyclohexane and the percentage of diluent used cause specific reaction times, decomposition, cross-linking, chain branching etc. of the polymer to be produced. Thus, while the white mineral oil is used for reasons of safety in manufacturing, transport, handling and storage, the addition of the white mineral oil also renders the product particularly suitable for specific use in the production of polymers. Therefore, it is precluded from classification in Chapter 29, HTSUS.
Heading 3815, HTSUS, provides for reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included. The EN to heading 3815, HTSUS, reads in relevant part:
This heading covers preparations which initiate or accelerate certain chemical processes. Products which retard these processes are not included. These preparations fall broadly into two groups.
* * * *
(b) Those of the second group are mixtures with a basis of compounds whose nature and proportions vary according to the chemical reaction to be catalysed. These preparations include:
(i) “ free radical catalysts ” (e.g., organic solutions of organic peroxides or of azo compounds, redox mixtures);
* * * *
The preparations of the second group are generally used in the course of manufacture of polymers.
CH-50-WO is a “free radical catalyst” (i.e., an organic solution of organic peroxide in white mineral oil). Among other uses, protestant states that the CH-50-WO is used to manufacture polymers. As such, the CH-50-WO falls squarely within the terms of heading 3815, HTSUS. This determination is further supported by the CBP Laboratories and Scientific Services laboratory report of September 16, 2004, referred to above.
HOLDING:
Ch-50-WO is classified in heading 3815, HTSUS. It is specifically provided for in subheading 3815.90.5000, HTSUS, which provides for “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Other.” The general column one rate of duty is 5% ad valorem.
The protest and application for further review should be denied 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 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.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division