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HQ 089066


July 30, 1991

CLA-2 CO:R:C:F 089066 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2931.00.5050

District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

RE: Application for Further Review of Protest No. 0901-1- 700175, dated February 7, 1991, concerning Cypure TM tertiarybutylarsine (TBA); 1,1-dimethylethylarsine; CAS 4262-43-5

Dear Sir:

This is a decision on a protest filed February 7, 1991, against your decision in the classification of the merchandise in entry number 11233508933, liquidated November 9, 1990.

FACTS:

The protestant entered the goods under subheading 2942.00.5000, HTSUSA, a provision for other organic compounds, aromatic or modified aromatic; drugs, dutiable at the general rate of 6.7%/kg. The reported classification, quantity and value generated a census statistical reject; upon consideration, the entry was reappraised. Protestant seeks reclassification under subheading 2931.00.5000, alleging that the subject goods are an organo-inorganic compound, to be entered free of duty. Customs laboratory analysis of Cypure TM indicates that it is 1,1- dimethylethylarsine, a compound used in the production of electronic materials. Its chemical structure consists, basically, of an organic radical, a tertiary butyl (-C-(CH3)3), bonded to an inorganic molecule, arsine (-AsH3). You recommend that the protest be denied.

ISSUE:

What is the proper classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of 1,1- dimethylethylarsine?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA 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. See Sections 1204(a) and (c) of the Omnibus Trade and Competitive Act of 1988 (19 U.S.C. 1204(a) & (c)).

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Clearly, Cypure TM is not an organic compound; therefore, it is not properly classifiable under heading 2942, HTSUSA. We are of the opinion that it is more properly classifiable as an organo-inorganic compound under heading 2931 of the schedule. For statistical purposes, we are of the opinion that the subject compound is properly classifiable under subheading 2931.00.5050, HTSUSA.

HOLDING:

The protest should be allowed.

The compound Cypure TM tertiarybutylarsine (TBA); 1,1- dimethylethylarsine; CAS 4262-43-5 is properly classifiable under subheading 2931.00.5050 of the HTSUSA, which provides for other organo-inorganic compounds; other; other, and entered free of duty.

A copy of this decision should be attached to the Customs Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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