HQ 962425

February 2, 1999

CLA-2 RR:CR:GC 962425 EAB

CATEGORY: Classification

TARIFF NO.: 2710.00.1530

Port Director

U.S. Customs Service

1 La Puntilla

San Juan, Puerto Rico 00901

Re: Protest 4909-98-100024, motor fuel; *Clarendon Marketing, Inc. v.
US*

Dear Port Director:

This is our decision on protest 4909-98-100024, timely filed October 27,
1998, against your decision in the classification under the Harmonized
Tariff Schedule of the United States (HTSUS) of merchandise entered June
17, 1998.

**FACTS:**

Merchandise described on Customs Form 7501 (Entry Summary) as "Kerosene
(Excpt\[sic\] Fuel or Motor)" was entered in subheading 2710.00.2000,
HTSUS, the provision for: "Kerosene (except motor fuel or motor fuel
blending stock)."

Customs Laboratory Report No. 9-1998-20618-001 dated July 17, 1998,
stated that the "sample has the characteristics of a kerosene jet fuel
A-2\" and set forth the A.P.I. specific gravity, Saybolt viscosity and
freezing point values of the sample, using ASTM D 1655.

Based upon the laboratory report, Customs advanced the rate of duty and
the entry was liquidated in subheading 2710.00.1530, HTSUS, the
provision for "Motor fuel, Jet fuel, kerosene-type."

The importer seeks reclassification in subheading 2710.00.2000, HTSUS,
on the claim that the merchandise "is a kerosene that has been purified
to improve its quality in order to also meet the jet fuel specification,
but still is a kerosene." *See* Customs Form 19, Section II, block 7
pertaining to this matter.

**ISSUE:**

Whether the merchandise is classifiable as a motor fuel, jet fuel,
kerosene-type, or as kerosene.

**LAW AND ANALYSIS:**

Merchandise imported into the U.S. is classified under the HTSUS. 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 HTSUS and are to be considered statutory provisions of
law for all purposes.

GRI 1 requires that classification be determined first according to the
terms of the headings of the tariff schedule and any relative section or
chapter notes and, unless otherwise required, according to the remaining
GRIs taken in order.

In the case of *Clarendon Marketing, Inc. v. US*, 144 F.3d 1464 (Fed.
Cir. 1998), the Court of Appeals for the Federal Circuit affirmed the
decision of the Court of International Trade in *Clarendon Marketing,
Inc. v. US*, 955 F. Supp. 1501 (Ct. Int'l Trade 1997) in favor of the
importer, and in so doing held that "Subheading 2710.00.25, the naphthas
subheading, literally contains three types of tariff classification
provisions: an *eo nomine* provision, an actual use provision, and a
principal use provision." 144 F.3d 1464, 1467. However, in this case,
although there is no proof of actual use of the merchandise as a motor
fuel blending stock, the merchandise is of the class or kind principally
used in the United States as a fuel in internal combustion or other
engines (Additional Note 3, Chapter 27; Additional U.S. Rule of
Interpretation 1(a); ASTM D 1655 (Standard Specification for Aviation
Turbine Fuels)). In *Clarendon*, the court stated "a naphtha whose
principal use is as a motor fuel is excluded from the naphthas
subheading by way of the parenthetical \[*i.e.*, (except motor fuel . .
.)\], and is instead classified under the motor fuel subheading, unless
some other provision requires otherwise." *Id.* Similarly, to
paraphrase, "a \[kerosene\] whose principal use is as a motor fuel is
excluded from the \[kerosene\] subheading by way of the parenthetical,
and is instead classified under the motor fuel subheading."

We find that the merchandise in this case is properly classifiable under
subheading 2710.00.1530, HTSUS.

**HOLDING:**

Kerosene meeting the specifications of jet fuel is classifiable in
subheading 2710.00.1530, HTSUS, the provision for "Motor fuel: jet fuel,
kerosene-type."

The protest should be DENIED. In accordance with section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1992, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter.

Sixty days from the date of this decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

\[Marvin Amernick, for\]

John A. Durant, Director Commercial Rulings Division