HQ 082359: Decision on Application for Further Review of Protest No. 1001-7-009104, on the classification of a petroleum product from Bulgaria.

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 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.



















                                         -2-


          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.























                                         -3-


          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
                                        Acting Director
                                        Commerical Rulings Division














































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