HQ 083560
May 11,1990
CLA -2 CO:R:C:G 083560 JGH
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was withdrawn.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.
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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