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HQ 952113




June 20 1994

CLA-2 CO:R:C:F 952113 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2710.00.6000

District Director of Customs
701 San Jacinto
P.O. Box 52790
Houston, Texas 77052

RE: Decision on Application for Further Review of Protest No. 2101-1-100007, on the classification of a mixture of petroleum hydrocarbons under the Harmonized Tariff Schedule of the United States (HTSUS).

Dear Sir:

This protest concerns the classification of mixed petroleum hydrocarbons from Mexico imported by Clarendon Marketing Inc., and entered on January 20, 1990. Entry was liquidated on April 5, 1991, and this protest filed on July 2, 1991.

FACTS:

On January 20, 1990, an entry was made of "mixed pentanes", and later changed by the importer to naphtha; Customs reclassified the material to other hydrocarbon mixtures which contain by weight over 50 percent of any single hydrocarbon, in subheading 2710.00.60, HTSUS.

A Customs Laboratory report described a sample as a mixture of hydrocarbons containing by approximate percentage:

Iso-Pentane --39

The API Gravity at 60 F. was 93.6 Degrees.

A Saybolt analysis of a sample was said to show a breakdown by percentages of: iso-butane of 0.43; normal butane - 7.12; iso- pentane 35.24; normal pentane- 47.84; 2,2 dimethylbutane- 1.18; 2-methyl pentane -7.19; 3 methyl pentane - 0.94; normal pentane -

ISSUE:

Classification of "mixed pentanes."

LAW AND ANALYSIS:

In behalf of the importer it is contended that the imported petroleum material is known as "a light, C5 - C6 or penex naphtha, a petroleum fraction consisting primarily of a mixture of pentanes and hexanes," classifiable as naphtha in subheading 2710.0025, HTSUS. It is alleged that "Naphtha" is not limited to any particular mixture, but rather encompasses all hydrocarbon mixtures distilling within the 80 degrees - 440 degrees F distillation range.

It is Custom's view, however, that this mixture, which is predominantly pentanes, is not naphtha but a specific hydrocarbon cut obtained from naphtha; while we agree that a "C5 - C13" product may be considered a naphtha, a 'C5 - C6' cut would not be naphtha for tariff purposes; in other words, we agree with your comment that a "C5-C6" would be considered "a subgroup of the full range naphtha..."; a product obtained from naphtha, which as you state is .." manufactured to meet specific needs of petroleum and petrochemical industries".

It is also alleged that Custom's analysis of the sample is flawed; that the product, in fact, did not contain a single hydrocarbon over 50 percent by weight; this is proved, it is maintained, by the results obtained by the commercial gauger. However, the argument advanced to support this claim is totally speculative and presents no substantial evidence of a convincing nature to establish that the results obtained by Customs are in error.

It is also claimed that as Customs did not extend the liquidation period, the protested entry should have been liquidated as entered. 19 U.S.C. 1504. It is asserted that the importer has no evidence or its employees any recollection that Customs extended the liquidation period beyond the one-year period. However, a review of Customs computer records shows that an extension notice was made in November 1990; that is, 2 months before the year was up. Customs records also show that during 1990 numerous contacts, both written and telephonic, were had with protestant's counsel on various issues relating to the entry, including extension of the liquidation period. - 3 -

As the court recognized in St. Paul Fire & Marine Insurance Co. v. U.S. (Appeal No. 93-1029, Fed. Cir.), the government is entitled to rely on the presumption that a Customs import specialist properly communicated with the importer regarding the extension of the liquidation period. It is believed that the preponderance of evidence, relied on by the court in that case to establish that by written evidence and orally, Customs did grant such an extension, also establishes such an extension in this case through the documented evidence present and actions of the Customs personnel involved.

HOLDING:

A mixture of petroleum hydrocarbons containing about 90% pentanes, with a N-Pentane content of 51% by weight, is classifiable as a mixture of petroleum hydrocarbons containing a single hydrocarbon of over 50% by weight, in subheading 2710.00.6000, HTSUS.

You are directed to deny the protest in full. A copy of this decision should be furnished the protestant with the Form 19 Notice of Action.

In accordance with Section 3A(11)(b) of the Customs Directive 099 3550-065, dated August 3, 1993, subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any liquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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