HQ 0082509 - Decision on Application for Further Review of Protest No. 5301-4-000409, on the Classification of Fuel Entered at the Port of Houston, Texas, under Entry No. 83-182296-6, April 9, 1983. - United States International Trade Commision Rulings

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HQ 082509

March 9, 1989

CLA-2 CO:R:C:G: 082509 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 475.2550

U.S. Customs Service
District Director
Southwest Region
5850 San Felipe St.
Houston, Texas 77057-3012

RE: Decision on Application for Further Review of Protest No. 5301-4-000409, on the Classification of Fuel Entered at the Port of Houston, Texas, under Entry No. 83-182296-6, April 9, 1983.

Dear Sir:

This is our decision on application for further review of protest No. 5301-4-000409.

FACTS:

The product in issue was entered as kerosene under item 475.3000 of the Tariff Schedules of the United States (TSUS), which provides for kerosene derived from petroleum, shale oil, or both (except for motor fuel). However, based on reports furnished both by independent commercial and U.S. Customs laboratories, U.S. Customs reclassified the entry as jet fuel kerosene type in item 475.2550, TSUS.

ISSUE:

Whether imported fuel, which satisfies the critical requirements for kerosene jet fuel under American Society for Testing Materials (ASTM) 1655, is properly classifiable as kerosene jet fuel in item 475.2550, TSUS, even though all the properties under ASTM D 1655 were not tested.

LAW AND ANALYSIS:

Counsel, on behalf of the importer, makes the following claims: (1) that the merchandise in issue is properly classifiable in item 475.3000, TSUS; and (2) U.S. Customs reclassification of the merchandise in item 475.2550, TSUS, was a mistake of fact, correctable under Section 520 (c) of the Tariff Act of 1930.

Counsel bases the above claims on the premise that U.S. Customs' reclassification of the merchandise as jet fuel was made on the basis of a laboratory report which did not test for all the critical properties required by the applicable standards to identify a product as jet fuel. Consequently, counsel claims, the reclassification of the merchandise on the basis of insufficient data constitutes a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of the law, correctable under Section 520 (c) of the Tariff Act of 1930.

In support of these claims, counsel relies on United States v. Exxon Corp., 607 F.2d 985, (1979). Exxon involved an appeal from a decision of the United States Customs Court which sustained an importer's claim that an imported petroleum product should have been classified as naphtha in item 475.35, TSUS, rather than as motor fuel in item 475.25, TSUS. The Exxon case arose when Treasury Decision (T.D.)66-23(13) was used as a guideline for the classification of naphtha-type and kerosene- type materials as motor fuel. Subsequent to Exxon, T.D. 83-173 revoked T.D. 66-23(13) and stated that it would be indicated that an imported petroleum product would be classified as motor fuel if it met one of the following ASTM specifications: D 439 for automotive gasoline; D 1655 for aviation turbine fuels or D 910 for aviation gasolines. Counsel claims that the entry was liquidated prior to the revocation of T.D. 66-23(13) and regardless of whether T.D. 66-23(13) or ASTM D 1655 was the applicable standard, the Exxon case establishes that all critical properties must be tested and met in order to support a determination that the imported merchandise is motor fuel.

In making its decision the court in Exxon discussed the characteristics a petroleum derivative must possess to be suitable for use as a motor fuel. The court stated that the "[p]roperties listed in T.D. 66-23(13) are not irrefutable. The Government and the importer are at liberty to establish that a standard listed as critical is really unimportant. However, in the case at bar no such showing was made". Id. at 989. The court further noted that the data submitted indicated that it would be difficult, if not impossible, to start a motor with the imported product and therefore, the merchandise should have been classified as naphtha, instead of as motor fuel.

In the instant case, in considering the specifications listed in ASTM D 1655, we are of the opinion that enough specifications were tested by both U.S. Customs and an independent laboratory to establish that the product should be classified as kerosene jet fuel. Due to cost restraints, it is
neither feasible nor possible to perform the full battery of ASTM D 1655 tests on every sample. However, we are also of the opinion that in testing for certain properties on a given sample, the proper classification of the sample can be determined on the basis of these test results. For example, because many of the specifications in ASTM D 1655 are closely related, the tests results may be extrapolated. As an example, in the instant case, since both distillation characteristics and vapor pressure meet the specifications listed in ASTM D 1655, it is almost certain that the fuel's viscosity will meet specifications. Similarly, since the product passes the copper strip corrosion test, it is fairly certain that the total acidity specification will be met. Therefore, we are of the opinion that the full range of testing was not critical in this case.

Also, counsel's argument that this merchandise is properly classifiable in item 475.3000, TSUS, as kerosene because it meets the ASTM D 3699 standard for kerosene is not significant in this case. The sole issue in this case is whether this merchandise meets the applicable standard for jet fuel. The specifications for kerosene jet fuel are more difficult to meet then those for kerosene, and aviation turbine fuel that meets specifications listed in ASTM D 1655 for jet fuel would also meet specifications for standard kerosene listed in ASTM D 3699. In other words, kerosene type jet fuels can be used in kerosene applications, but not all kerosene can be used as jet fuel.

Therefore, counsel's reliance on the Exxon case is misplaced, because unlike the facts in Exxon, in the instant case there is no showing that the merchandise is unsuitable for the use for which it is classified. Further, the importer has not produced any data to indicate that the merchandise failed to meet any of the requirements of ASTM 1655 and has therefore not overcome the presumption of correctness of U.S. Customs' classification of the merchandise.

It is also the position of this office that in classifying this merchandise, there was no clerical error, mistake of fact, or other inadvertence within the meaning of section 520(c) of the Tariff Act of 1930. Classification of the merchandise was based on the full knowledge that although all the properties for D 1655 had not been reported in the public gauger's analysis, at least 12 tests of ASTM D 1655 were met, and the analysis listed no data which failed to meet the standard. Also, U.S. Customs was aware of the implications of Exxon, supra. Additionally, the importer furnished no data to indicate that the merchandise failed to meet any of the requirements of ASTM D 1655.

HOLDING:

In view of the foregoing, it is our position that the merchandise in issue is properly classifiable in item 475.25, TSUS.

This protest is denied. A copy of this decision should be furnished to the protestant with the Form 19 Notice of Action.

Sincerely,

John Durant, Director

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