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HQ 950526


February 18, 1992

CLA-2 CO:R:C:F 950526 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2915.90.5000

District Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044-3130

RE: Application for Further Review of Protest No. 2304-91- 100109, dated May 6, 1991, concerning Lupersol 75M, a 50% solution of t-butyl peroxyacetate and mineral spirits; t-butyl peroxyacetate; tert-butyl peroxyacetate; 49 CFR 173.225

Dear Sir:

This is a decision on a protest filed May 6, 1991, against your decision in the classification of merchandise liquidated February 8, 1991.

FACTS:

The protestant entered all goods in subheading 2916.19.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for unsaturated acyclic monocarboxylic acids, their peroxides and peroxyacids, other, eligible for duty free treatment as a product of Mexico, a beneficiary country under the Generalized System of Preferences.

The merchandise was reclassified in subheading 3815.90.5000, HTSUSA, as a mixture of two separate chemically defined compounds that made up a reaction initiator not elsewhere specified or included, other, and the rate was advanced to 5% ad valorem.

The protestant now claims that the merchandise is properly classifiable under subheading 2915.90.5000, HTSUSA, a provision for saturated acyclic monocarboxylic acids and their peroxides and peroxyacids, other, dutiable at the general rate of 3.8% ad valorem but eligible for duty free treatment as a product of Mexico, a beneficiary country under the Generalized System of Preferences.

Customs laboratory report of a sample taken from the subject importation indicates that the product has the characteristics of t-butyl peroxyacetate in a hydrocarbon solvent matrix, that t- butyl peroxyacetate is a saturated, non-aromatic ester derivative of a peroxyacid and that the composition of the sample is consistent with the manufacturer's claim of approximately 50% t- butyl peroxyacetate by weight. The report notes classification in subheading 2915.90.5000, HTSUSA, as appropriate.

ISSUE:

What is the proper classification under the HTSUSA of Lupersol 75M, a 50% solution of t-butyl peroxyacetate and mineral spirits?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Generally, only separate chemically defined compounds fall to be classified under any of the headings of Chapter 29 of the Schedule. Note 1(a), Chapter 29, HTSUSA. An appropriate heading, if any, of Chapter 29 would apply, however, to separate chemically defined organic compounds dissolved in other 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. Note 1(e), Chapter 29, HTSUSA.

The U.S. Department of Transportation strictly regulates the transportation of t-butyl peroxyacetate. See Final Rule published in Federal Register, Friday, December 21, 1990, 52402, revising Part 173 to Title 49, Code of Federal Regulations. T- butyl peroxyacetate in concentrations of not-more-than 52% must be diluted in solvent of not-less-than 48% when packaged and offered for transportation, id. at 52656.

We are of the opinion that t-butyl peroxyacetate is a separate chemically defined compound that in this case has been dissolved in mineral spirits in a normal and necessary method of putting it up, solely for reasons of safety or transport, and in such a way that the mineral spirits do not render the t-butyl peroxyacetate suitable for a specific use. The subject merchandise is described under heading 2915, HTSUSA, a provision for saturated acyclic peroxyacids.

HOLDING:

The protest should be allowed.

Lupersol 75M, a 50% solution of t-butyl peroxyacetate and mineral spirits is classifiable under subheading 2915.90.5000, HTSUSA, a provision for saturated acyclic monocarboxylic acids and their peroxyacids; other; other; other.

Articles classified under that subheading for the year 1991 were subject to a general rate of duty of 3.8% ad valorem and products of Mexico classifiable thereunder were eligible for duty-free treatment under the Generalized System of Preferences (GSP), upon compliance with applicable law and Customs Regulations.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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