HQ 081795
May 11,1990
CLA-2 CO:R:C:G 081795 JGH
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