CLA-2 CO:R:C:F 951177 JGH
Area Director of Customs
New York Seaport
6 World Trade Center
New York, N.Y. 10048
RE: Decision on Application for Further Review of Protest
No. 1001-91-105435 on the classification of Diethyl Maleate
from Belgium.
Dear Sir:
This protest concerns the tariff classification of a certain
chemical compound under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The merchandise, diethyl maleate (DEM), was entered in May
1990 and liquidated under the provision for other maleic anhydride
in subheading 2917.14.10, HTSUS; later Customs changed the
classification to subheading 2917.19.27, as a derivative of maleic
acid. Customs current position is that the classification is
under the provision for other acyclic polycarboxylic acids and
their derivatives, in subheading 2917.19.4000, HTSUS, or
2917.19.5050, HTSUS, depending on derivation.
Diethyl Maleate is produced from the reaction of maleic
anhydride with ethyl alcohol in the presence of a catalyst.
ISSUE:
Classification of DEM under subheading 2917.14.5000, HTSUS,
for maleic anhydride derived from other than aromatic sources, or
subheading 2917.19.4000 or 2917.19.5050, HTSUS, for other acyclic
polycarboxylic acid and their derivatives, depending on source.
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LAW AND ANALYSIS:
It is urged that DEM, as a derivative of maleic anhydride,
be classified as maleic anhydride, in view of subheading note 1,
Chapter 29, HTSUS, which states that derivatives of a chemical
compound are to be classified in the same subheading as the
compound provided that they are not more specificaly covered by
any other subheading and that there is no residual subheading
named "other" in the series of subheadings concerned (emphasis
supplied). Although DEM may be considered as being derived from
maleic anydride it is not maleic anhydride.
Although an eo nomine form, without words of limitation or
contrary legislative intent or judicial determination, covers all
forms of the chemical, and even though DEM is made from maleic
anhydride, it is not a form of that chemical. Furthermore, there
is a residual "other" subheading which is more specific for
classification purposes. It is also claimed that as DEM is made
from butane-sourced maleic anhydride, it can not be considered a
derivative of maleic acid; it is produced, as stated, by the
reaction of maleic anhydride and ethyl alcohol in the presence of
a catalyst.
DEM is not maleic anhydride, nor is it classifiable in
2917.19.27; it is an ester of an acyclic polycarboxylic acid,and
is thus more specifically classifiable in subheading 2917.19.4000,
HTSUS, or 2917.19.5050, HTSUS, depending on derivation. The
explanatory notes point out that heading 2917 covers polycarboxylic
acids and their anhydrides, halides, peroxides, peroxyacids,
esters, and salts.
Since no evidence has been submitted to establish the source
of the maleic anhydride used,if the protestant believes that DEM
is of nonaromatic derivation, a complete statement on the method
of processing, including a flow sheet, should be submitted for
review by the district director to establish the fact.
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HOLDING:
On the basis of the evidence submitted, the DEM in question
is classifiable in 2917.19.4000, HTSUS.
The protest should be denied in full, subject, however, to the
protestant's submission of proof of derivation for purposes of
classification under 2917.19.5050.
A copy of this decision should be attached to Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
Sincerely,
John Duranct, Director
Commercial Rulings Division