CLA-2: OT:RR:CTF:TCM H004099 KSH
Frederic D. Van Arnam, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South 25th Floor New York, New York, 10016
RE: Revocation of HQ 967885, dated February 1, 2006
Dear Mr. Van Arnam: This is in reply to your correspondence on behalf of your client, DeGussa Initiators, Inc., dated November 21, 2006, in which you have requested reconsideration of Headquarters Ruling Letter (HQ) 967885, dated February 1, 2006. In HQ 967885, a substance identified as “CH-50-WO” was classified under subheading 3815.90.5000 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Reaction initiators, reaction accelerators and catalytic preparations, not elsewhere specified or included: Other: Other.”
In your request for reconsideration, you have provided additional information that the white oil present in the product is used solely for safety during transport and handling and has no other use. Thus, you maintain that the CH-50-WO should be classified 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: Other.” In accordance with your request for reconsideration of HQ 967885, CBP has reviewed the classification of this item and has determined that the cited ruling is in error.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on July 25, 2007, in Volume 41, Number 31, of the CUSTOMS BULLETIN. CBP received no comments in response to the notice.
HQ 967885 is a Headquarters ruling on Protest 4101-05-100247. In accordance with San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the liquidation of the entries covering the merchandise which was the subject of Protest 4101-05-100247 was final on both the protestant and CBP. Therefore, this decision has no effect on those entries.
FACTS:
The merchandise was described in HQ 967885 as follows:
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 ketone peroxide of the other type described in Note 1(e) to Chapter 29, HTSUS, and] a reaction initiator of the kind described in EN 3815(b)(i), HTSUS, as a free radical catalyst.
In a lab report issued by the CBP Laboratories and Scientific Services on
April 5, 2007, the lab noted in relevant part, that the normal and usual mode of transport and storage of peroxide is in a solvent. The lab also determined that there was no indication that CH-50-WO is for specific use rather than general use.
ISSUE: Whether CH-50-WO is classified in heading 2909, HTSUS, as a peroxide or its derivative or heading 3815, HTSUS, as a 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.” Except where the context otherwise requires, Chapter 29, Note 1(e), HTSUS, provides for, among other goods, 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 use rather than for general use.”
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.
This heading does not include :
* * * *
(b) Separate chemically defined compounds (Chapter 28 or 29).
* * * *
Subject to the five exceptions listed in Chapter Note 1(a) to Chapter 38, HTSUS, the Chapter Note also states that the Chapter does not cover separate chemically defined elements or compounds.
1,1-Di (tert-butylperoxy) cyclohexane is a separate chemically defined compound that is dissolved in a solution of white mineral oil. 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 solution of white mineral oil must not render the product particularly suitable for specific rather than for general use. If the white mineral oil renders the product suitable for a specific use then the CH-50-WO is classified in Chapter 38, HTSUS.
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. In the merchandise at issue, the 1,1-Di (tert-butylperoxy) cyclohexane is mixed with white mineral oil. Mineral oil is a by-product in the distillation of petroleum to produce gasoline. It is a chemically inert, transparent, colorless oil composed mainly of alkanes and cyclic paraffins, related to white petrolatum. Mineral oil is a substance of relatively low value, and it is produced in very large quantities. See www.Wikipedia.org.
It is mineral oil's property of non-reactivity that is being utilized when it is added to 1,1-Di (tert-butylperoxy) cyclohexane for shipment. By placing the organic peroxide in an environment of mineral spirits, contact with any water vapor in the atmosphere (i.e. container) is minimized. Peroxides such as the merchandise at issue react readily with water, thereby destroying the original product. In HQ 967885, we determined that the white mineral oil rendered the merchandise suitable for specific use in the production of polymers and therefore it was excluded from Chapter 29, HTSUS, by virtue of Chapter Note 1(e) to Chapter 29, HTSUS. However, based on the additional information submitted in conjunction with the request for reconsideration as well as corroborating information supplied by CBP’s Office of Laboratory and Scientific Services, we have determined that the mineral oil does not function as an initiator nor does it participate in reactions such as cross-linking, cross-branching, or any other chemical reaction which would affect the rate of polymer formation as we had previously determined.
In accordance with Chapter Note 1(e) to Chapter 29, HTSUS, and Chapter Note 1(a) to Chapter 38, HTSUS, CH-50-WO is classified in Chapter 29, HTSUS, because the white mineral oil is used for reasons of safety in manufacturing, transport, handling and storage, but does not render the product particularly suitable for specific use in the production of polymers.
HOLDING:
CH-50-WO is classified in heading 2909, HTSUS. It is provided for 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: Other.” The general column one rate of duty is 3.7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 967885, dated February 1, 2006, is hereby revoked
In accordance with 19 U.S.C. 1625 (c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division