HQ 957772: Internal Advice Request 46/94; 19 CFR 177.11(b)(2); naphtha; 19 CFR 10.138; proof of use; actual use certificate

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 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--

               (a)
               .
               .
               .
               (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
                            Commercial Rulings Division