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HQ 957772




April 21, 1995

CLA-2 R:C:F 957772 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2710.00.25

District Director
U.S. Customs Service
1717 East Loop North
Houston, Texas 77029

RE: Internal Advice Request 46/94; 19 CFR 177.11(b)(2); naphtha; 19 CFR 10.138; proof of use; actual use certificate

Dear District Director:

This is in response to a request for Internal Advice dated July 8, 1994, submitted on behalf of Aectra Refining and Marketing, Inc., hereinafter identified as "Aectra."

FACTS:

Pursuant to 19 CFR 177.11(b)(2), Aectra has requested a written ruling concerning the classification under the Harmonized Tariff Schedule of the United States (Annotated) ("HTSUSA") of 229,280 barrels of "naphtha." No physical properties, such as, e.g., boiling point, specific gravity, were reported.

Aectra sold the goods to a petroleum refiner for further refining and processing into various products. The goods were entered during January, 1994, under subheading 2710.00.25, HTSUSA, a provision for "Naphthas (except motor fuel or motor fuel blending stock)," dutiable at the Column 1 General rate in effect for calendar year 1994. During March, 1994, Aectra submitted an "Actual-Use Certification" completed by the aforesaid petroleum refiner to the effect of certifying that the subject goods were actually used as declared by Aectra. On May 5, 1994, the aforesaid certificate was found to be "Not acceptable. No indication of use." The goods were liquidated under subheading 2710.00.18, HTSUSA, a provision for "Motor fuel blending stock," and the rate of duty was advanced accordingly.

ISSUE:

Whether the absence of express language concerning the use of imported goods affects classification under the HTSUSA.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. Tariff classification 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.

The Additional U.S. Rules of Interpretation state in part:

1. In the absence of special language or context which otherwise requires--

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(b) a tariff classification controlled by the actual use to which the imported goods are put in the United States is satisfied only if such use is intended at the time or importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered[.]

Customs Regulations, Part 10, Section 131 et seq. (19 CFR 10.131 - 10.139, "RATE OF DUTY DEPENDENT UPON ACTUAL USE") provide as follows:

?10.138 Proof of use.

Within 3 years from the date of entry or withdrawal from warehouse for consumption, the importer shall submit in duplicate in support of his claim for free entry or for a reduced rate of duty a certificate executed by (1) the superintendent or manager of the manufacturing plant, or (2) the individual end-user or other person having knowledge of the actual use of the imported article. The certificate shall include a description of the processing in sufficient detail to show that the use contemplated by the law has actually taken place. A blanket certificate covering all purchases of a given type of merchandise from a particular importer during a given period, or all such purchases with specified exceptions, may be accepted for this purpose, provided the importer shall furnish a statement showing in detail, in such manner as to be readily identified with each entry, the merchandise which he sold to such manufacturer or end-user during such period.

Congress has passed no law and Customs has issued no regulation mandating specific language to meet the requirements of 19 CFR 10.138. Upon review of the documentation in this case, we find that the "Actual-Use Certification" complies with law and regulation.

HOLDING:

The subject merchandise was properly classified under subheading 2710.00.25, HTSUSA, a provision for "Naphthas (except motor fuel or motor fuel blending stock)."

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date, 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, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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