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HQ 081940


November 21, 1988

CLA-2 CO:R:C:G 081940 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 407.13; 2707.30.0040

Eugene T. Rossides, Esq.
Rogers & Wells
1737 H. Street, N.W.
Washington, D.C. 20006

RE: Classification of Mixed Xylenes

Dear Mr. Rossides:

Your letter of March 15, 1988, concerns the tariff status of mixed xylenes, a product of Brazil, containing up to 42 percent ethylbenzene.

FACTS:

The mixed xylenes are described as a product of an ethylene steam cracker. The xylene stream it is claimed would be fractionated from a pyrolysis gasoline stream emanating from a steam cracker, with nothing added or subtracted to affect the ethylbenzene content. The mixed xylenes would be used as a solvent. Ethylbenzene is not regarded as an isomer but as a valuable component of a xylene stream.

ISSUE:

Whether mixed xylenes with up to 42 percent ethylbenzene content is classifiable under the provision for coal tar crude; xylene, in item 401.74, TSUS; or whether they are classifiable as benzenoid mixtures in item 407.13, TSUS.

LAW AND ANALYSIS:

As you note, mixed xylene streams with up to 25 percent ethylbenzene content are classifiable as xylene in item 401.74, TSUS. However, you feel that such streams with over 25 percent should also be classifiable as xylene, since they are used for the same purposes and the ethylbenzene content does not change the product's identity as xylene.

The chemical schedule, Schedule 4, TSUS, was designed, the tariff classification study notes, wherever possible to describe the products in technical, chemical terms that persons trading in chemicals would readily understand. Such terminology, it stated, would impart greater certainty to the tariff descriptions. Therefore, Customs, in arriving at a definition of xylenes utilizes the ASTM specifications and follows industry practices. No specifications were given for these products so that it is not known whether ASTM standards are met. In a survey of the trade, Customs found no commercial product traded had over 25 percent ethylbenzene content. The use of such industry standards to define a coal tar product has been approved by the court, as can be seen in Productol Chemical Co., v. United States, (C.D. 4598), which involved the classification of cresylic acid.

Therefore, Customs adheres to its position that commercially available grades of mixed xylenes are classifiable as xylenes in item 401.74, TSUS, if they do not contain more than 25 percent ethylbenzene. Mixed xylenes with over 25 percent ethylbenzene content are classifiable as a benzenoid mixture in item 407.13, TSUS. The rate of duty is 7.4 percent ad valorem but not less than the highest rate applicable to any component material. The component with the highest rate is item 402.36, TSUS, at the rate of 0.5 cent per pound plus 17.3 percent ad valorem. Products of Brazil classifiable in item 407.13, TSUS, are entitled to duty- free status under the Generalized System of Preferences, if they meet all of the requirements.

HOLDING:

Under the tariff schedules, mixed xylenes containing over 25 percent ethylbenzene are classifiable in item 407.13, TSUS.

Under the Harmonized Tariff Schedules of the United States (HTSUSA), which will replace the TSUS on January 1, 1989, mixed xylenes which contain at least 50 percent of all xylene isomers will be classified as other xylenes in subheading 2707.30.0040, HTSUSA, and will be free of duty. If there are any changes before the effective date of the new law, this advice may not continue to be applicable.

Sincerely,

John Durant, Director

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