HQ 952113
June 20 1994
CLA-2 CO:R:C:F 952113 JGH
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:
N-Pentane ----51
Iso-Pentane --39
Hexanes------- 5
Butanes --------5
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 -
0.06. - 2 -
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
Commercial Rulings Division