HQ 082509: 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.

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 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.












                                         -2-


               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













                                         -3-


          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.                                   














                                         -4-


          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
                                         Commercial Rulings Division