HQ 967885

February 1, 2006

CLA-2: RR:CTF:TCM 967885 KSH

CATEGORY: Classification

TARIFF NO.: 3815.90.5000

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