HQ 081940: Classification of Mixed Xylenes

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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.














                                         -2-


               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
                                         Commercial Rulings Division













          JGHurley:tj:typed 09/07/88