HQ 0082359 - Decision on Application for Further Review of Protest No. 1001-7-009104, on the classification of a petroleum product from Bulgaria. - United States International Trade Commision Rulings

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HQ 082359

April 17,1990

CLA-2 CO:R:C:G 082359 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 475.25

Area Director of Customs
U.S. Customs Service
New York Seaport
6 World Trade Center
New York, N.Y. 10048

RE: Decision on Application for Further Review of Protest No. 1001-7-009104, on the classification of a petroleum product from Bulgaria.

Dear Sir:

This protest involves the classification of a petroleum product under the Tariff Schedules of the United States. (TSUS).

FACT:

The petroleum product was entered in June 1986, under the provision for mixtures of hydrocarbons derived from petroleum item 475.65, TSUS. Customs classified it as motor fuel in item 475.25, TSUS. Protestant now claims the import is classifiable as a naphtha in item 475.35, TSUS.

A Customs laboratory report stated that based on the API gravity, Reid Vapor Pressure, Distillation Range and Lead Analysis, the sample tested met the specifications of ASTM D 439-83 for unleaded gasoline. A supplemental report stated that it had an octane rating-(R&M)/2-of 85.

ISSUE:

Whether a petroleum product having the properties of motor fuel (with an octane rating of 85) is classifiable as a motor fuel in item 475.25, TSUS.

LAW AND ANALYSIS:

It is alleged that an 85-octane petroleum product is not chiefly used as a motor fuel but is a blendstock. Customs reliance on ASTM guidelines is inappropriate, it is maintained, because while the guidelines indicate that 85 octane may be suitable for cars built prior to 1975, it is not suitable for later models.

ASTM D439 divides unleaded gasoline into three grades based on octane rating: unleaded gasoline with an octane rating greater than 90; unleaded gasoline with an octane rating greater than 87; and unleaded gasoline with an octane rating greater than 85. On this basis, the classification of each grade of unleaded gasoline for classification purposes would be based on the chief use of the particular grade. Evidence was submitted in behalf of the importer to show that for various 1987 automobiles it is recommended that the unleaded fuel used have an octane rating of at least 87. Therefore, instead of motor fuel, it is maintained that the import is a catalytic naphtha, a product produced by a refining process which breaks down large, complex hydrocarbon molecules into smaller, more useful ones.

The data for petroleum products actually used as motor fuel in the different sections of the United States is published by the National Institute for Petroleum and Energy Research (NIPER). The publication, Motor Gasolines, Summer 1986, (NIPER), shows that, while for many areas of the country the" unleaded gasoline-antiknock (R+M)/2 below 90 octane" was about 87, octanes below 87 did exist. In fact for the Rocky Mountain area the minimum was 84.3.

Thus, although a motor fuel may be upgraded subsequent to importation, one with an octane rating of 85 was chiefly used as a commercial motor fuel during the summer of 1986, and since 1987 cars did not predominate in 1986 (or in 1987, for that matter), it is the entire spectrum of internal combustion automobiles which would have to be considered.

HOLDING:

The protest is denied.

The protestant should be given a copy of the decision with the Form 19 Notice of Action.

Sincerely,

Jerry Laderberg

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