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HQ 951177


March 15, 1993

CLA-2 CO:R:C:F 951177 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2917.19.40

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.

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.

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


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