HQ 083560: Decision on Application For Further Review of Protest No. 1001 -7-006376, on the classification of 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 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.
















                                          -2-


                 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            was withdrawn.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.

















                                          -3-


            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
                                        Acting Director
                                        Commercial Rulings Division














































            CC- Chief, Residual Liquidation and Protest Branch
                c/o DARC, Commercial Operations,
                New York Region
            6cc-A.D., N.Y. Seaport
            hurley library/peh
            083560