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HQ 083560


May 11,1990

CLA -2 CO:R:C:G 083560 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 475.25

Area Director of Customs
U.S. Customs Service
New York Seaport
6 World Trade Center
Room 432
New York, N.Y. 10048

RE: Decision on Application For Further Review of Protest No. 1001 -7-006376, on the classification of a petroleum product from Romania.

Dear Sir:

This protest involves the tariff classification,under the Tariff Schedules of the United States (TSUS), of a petroleum product imported to be used as a motor fuel.

FACTS:

This petroleum product from Romania was entered in April 1986, as a mixture of hydrocarbons, n.s.p.f., derived wholly from petroleum, in item 475.65,TSUS. Customs classified the import as a motor fuel in item 475.25, TSUS. The octane rating was 85.6.

ISSUE:

Whether the imported petroleum product is classifiable as a naphtha or motor fuel under the TSUS.

LAW AND ANALYSIS:

Under the TSUS, headnote 2(b), part 10, Schedule 4, defines a motor fuel as a petroleum product which is chiefly used as a fuel for internal combustion engines. The imported product has an octane rating of 85.6. which the importer feels is too low for a commercial grade gasoline.

It is the importer's contention that the product is classifiable as a mixture of hydrocarbons derived wholly from petroleum in item 475.65,TSUS, or, in the alternative, petroleum naphtha in item 475.35,TSUS. The alternative claim of classification as a benzenoid mixture in item 407.16, TSUS, was withdrawn.

Essentially it is contended that the product could not be used as a commercial motor fuel in its imported condition, except in a very small area, where the altitude, low atmospheric pressure, and reduced vaporization temperature make low octane fuels marginally feasible for some automotive engines. Rather, it is felt, in view of the import's properties, that it falls with in the definition of naphtha; that it is a blending stock, which, when added with other substances, will produce a gasoline. The lowest recommended commercial grade of unleaded gasoline available, it is argued, has an octane (r+m/2) rating of 87.

Customs does not rely exclusively on ASTM D-439, as alleged, to establish whether or not an imported petroleum product is a motor fuel; rather, it is used as a guide, and in the absence of convincing proof to the contrary will be used to facilitate classification. As pointed out in T.D. 83-173 classification of an imported petroleum product as a motor fuel will be indicated if the product does meet the pertinent ASTM standards. However, it still is the above cited headnote which obtains. ASTM D-439 does divide 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. For Customs purposes it is the chief use of each grade which is to be considered for classification.

Of greater weight in establishing chief use would be the actual data on regional gasoline use published by the National Institute for Petroleum and Energy Research (NIPER). For the summer of 1986 NIPER shows that there were commercial grades of unleaded gasoline with an octane rating of less than 87. In fact, for the Rocky Mountain area, the minimum octane rating was 84.3. Thus, even though newer engines might demand higher octane performance, in view of the wide range of automotive engine capabilities in use, a commercial grade of gasoline with an octane of 85.6 did exist for the period in question.

HOLDING:

The protest is denied in full.

A copy of this decision should be furnished the protestant along with the Form 19 Notice of Action.

Sincerely,

Jerry Laderberg

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