HQ 081795: Decision on Application For Further Review of Protest No. 1001-7-009254, a petroleum product from Romania

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 081795

                                      May 11,1990


            CLA-2 CO:R:C:G 081795 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. 1001-7-009254, a petroleum product
                 from Romania

            Dear Sir:

                 This protest involves the tariff classification of a
            petroleum product imported to be used as a motor fuel.

            FACTS:

                 This petroleum product was imported in November 1985 and
            entered by the importer as a benzenoid mixture in item 407.16,
            TSUS, (a GSP eligible tariff number at a time when Romania
            enjoyed GSP status).  A Customs laboratory report stated that
            on the basis of the API gravity, distillation range, reid vapor
            pressure and lead analysis, a sample of the import met the ASTM
            specifications for unleaded gasoline.  The octane rating
            (R+M/2) was given as 85.6.

            ISSUE:

                 Whether the imported petroleum product is classifiable as
            motor fuel in item 475.25, TSUS, or a benzenoid mixture in item
            407.16, TSUS.

            LAW AND ANALYSIS:

                 It is claimed that the imported petroleum product cannot
            as classified as motor fuel, as the octane rating is too low.
            Headnote 2(b), Part 10, Schedule 4, TSUS, defines motor fuel
            as a petroleum product which is chiefly used as a fuel for
            internal combustion or other engines.  It is asserted that














                                          -2-


            the data published by the National Institute for Petrolem and
            Energy Research (NIPER) on motor gasolines for 1985 established
            that only 2 percent had an octane rating as low or lower than
            the octane levels shown for the imported product.  Thus, it is
            concluded that the product is not chiefly used as motor fuel
            in the United States.  Customs uses the standards set forth in
            ASTM D-439 for automotive gasoline as a guideline for
            determining whether an imported petroleum product meets the
            headnote definition of motor fuel.  ASTM D-439 divides unleaded
            gasoline in 3 grades based on octane rating: unleaded gasoline
            with an octane rating greater than 90, unleaded gasoline with
            an octane rating greater than 87, and octane rating greater
            than 85.  The Niper Report shows that for 1985 there were 213
            unleaded gasolines with an antiknock index below 90.  Thirty
            eight of them had an octane range of between 85.0 and 86.9.

                 This is not an product which was physically incapable of
            being used as a motor fuel, as mentioned by the court in United
            States v. Exxon Corp., 66 CCPA 129.  Rather, in contrast, this
            product is clearly within the range of petroleum products being
            commercially used as motor fuels as imported.  Thus, it is of a
            class or kind chiefly used for motor fuel.  Admittedly with the
            steady improvement in engine performance, octane ratings have
            increased; however, ASTM standards still reflect, for the
            period in question, a commercial use within a designated area
            for an automotive gasoline with an octane rating such as the
            one in issue.

            HOLDING:

                 You are directed to deny the protest in full.

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

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division