CLA-2 RR:CR:GC 963166ptl
Port Director
U.S. Customs Service
200 Granby Street
Suite 839
Norfolk VA 23510
RE: Protests 1401-99-100085, 3501-99-100033; 8001 Staest.
Dear Port Director:
The following is our decision on Protest 1401-99-100085, against your classification of a product identified as “8001 Staest” under the Harmonized Tariff Schedule of the United States (HTSUS). This decision also applies to Protest 3501-99-100033, concerning the same product, which was filed with the Customs Port Director, Minneapolis, Minnesota.
FACTS:
The product under protest, “8001 Staest,” is described as a stanol ester to be used in food production. The protestant states that the product is the result of the esterification of two stanols, not the mixture of two stanol esters. The stanols are Btea-sitostanol and campestanol, both derived from canola oil fatty acid through hydrogenation of the sterols. The stanol ester product is produced through a patented process which has been summarized by protestant as "[H]ydrogenating a sterol blend in a hydrogenation solvent and at an elevated temperature in the presence of a hydrogenation catalyst, by removing the hydrogenation catalyst from the obtained hot reaction solution, by transesterifying the immediate stanol blend with a fatty acid methyl ester at an elevated temperature and in the presence of a transesterification catalyst, and by finally purifying the stanol ester blend thus obtained. According to the process description, the intermediate stanol blend is neither crystallized nor removed from the reaction solution, but the hydrogenation solvent is replaced therein at least in part by a transesterification reagent. Alternately, the hydrogenation solvent may also be used as the transesterification solvent, and preferably also as the transesterification reagent."
The merchandise was entered at various ports between September 1998 and March 1999. The entries under protest were liquidated on April 30, 1999, under subheading 3824.90.4020, HTSUS, which provides for fatty substances of animal or vegetable origin and mixtures thereof. A timely protest was filed on July 2, 1999, in which protestant claimed that the product should be classified as entered in subheading 1516.20.90, HTSUS, which provides for vegetable fats and oils and their fractions: other. In a supplemental submission, protestant has proposed classification of the product in subheading 3404.90.50, HTSUS, which provides for artificial waxes and prepared waxes.
In documents accompanying the protest, the merchandise is referred to under a variety of designations, including: "8001 Staest," "8002 Staest," "7002 Staest," "Sito 74," and "Sito 70." During the course of a meeting on May 10, 2000, at Customs Headquarters, the protestant stated that the product had been undergoing refinement during the period in which the protested entries were being made. Protestant stated that a sample submitted at the meeting represented the current and final formulation of the product, "8001 Statest".
In preparing this response, we have considered the supplemental materials provided by protestant on August 14, 2000, and the additional laboratory findings submitted.
ISSUE:
What is the classification of the product identified as "8001 Staest"?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
1516 Animal or vegetable fats and oils and their fractions, partly or wholly hydrogenated, inter-esterified, re-esterified or elaidinized, whether or not refined, but not further prepared:
1516.20 Vegetable fats and oils and their fractions:
1516.20.9000 Other
3404 Artificial waxes and prepared waxes:
3404.90 Other:
3404.90.5000 Other
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included:
3824.90 Other:
Other:
3824.90.40 Fatty substances of animal or vegetable origin and mixtures thereof
3824.90.4020 Mixtures of fatty acid esters
The ENs to Chapter 15, at page 108, define the term "animal or vegetable fats and oils" as "esters of glycerol with fatty acids (such as palmitic, stearic and oleic)." These glycerol esters are known as glycerides. Chapter 15 also includes fractions of oils. Fractions of animal fats or oils are concentrations of certain glycerides which are separated from other glycerides on the basis of physical characteristics, (e.g., on the basis of different melting points). Fractionated oils are obtained from the whole oil by processes such as chilling, pressing and solvent fractionation. These processes separate the whole oil into two or more fractions. Each fraction is composed of the components of the original oil, but in selected proportions. As noted in the ENs, "Fractionation does not cause any changes in the chemical structure of the fats or oils."
HQ 959798, dated July 29, 1999, describes in great detail various fractionation processes described in the booklet, Food Fats and Oils, 6th ed., (The Institute of Shortening and Edible Oils, Inc., Washington, D.C., 1988). In that ruling, Customs stated: "Based on the foregoing, the "fractions" described in the various headings of chapter 15 include only glycerides of similar composition, which products are included by the term animal or vegetable fats or oils, as defined in the General EN’s to that chapter. The instant deodorizer distillate, which consists primarily of free fatty acids, sterols, tocopherols, hydrocarbons and small amounts of other constituents, does not meet that definition. This distillate is, instead, a by-product removed during the refining process to further purify the vegetable oil from substances …."
The 8001 Staest is produced from sterols, which are derived from vegetable oils. The information submitted by protestant in the attachment titled "International Application Published Under The Patent Cooperation Treaty (PCT)" on page 1 states: "Sterols are compounds commonly present in plants and animals, although in small concentrations. The sterol compound most commonly present in animals is cholesterol. The sterol material present in plants is usually composed of several sterol structures which resemble each other structurally. The most common of the latter are B-sitosterol, campesterol, and stigmasterol…."
In Kirk-Othmer Encyclopedia of Chemical Technology, 2nd Ed. (1967), Fats and Oils, 781, sterols are described as follows:
"Most of the 0.5-1.5% unsaponifiable material commonly found in both vegetable and animal fats consists of sterols. The sterols of animal fats, consisting primarily of cholesterol, are sufficiently different from the mixture of sitosterols, stigmasterols, etc., in vegetable oils to permit the two classes of fats to be distinguished through the difference in melting points of their sterol acetates.
Sterols are colorless, odorless, and generally inert insofar as the practical application of fats are concerned. A portion of the sterols in crude oils is removed by alkali refining; the soap stock or residue from refining serves as a commercial source of sterols for the manufacture of pharmaceuticals."
8001 Staest is not a fat or an oil. It is a produced from a product derived from a vegetable oil (sterol). It does not have the structure of a triglyceride, either before or after processing.
Over the past several years, three Laboratory Reports with differing results have been issued by Customs. The initial report, 3 1998 20657, dated September 16, 1998, indicated that the product could be classified by reference to EN 15.16. This report was amended on June 15, 1999, by report 3 1999 20676, which indicated that the two phytostanol fatty esters are not within the purview of "fractions of vegetable oil" covered by EN 15.16. This second report suggested classification of the product in subheading 3824.90.4020, HTSUS. The third report, 2 1999 22568, dated November 30, 1999, resulted from information submitted with the protest. That report states "Based on the importer's information and patent, it is our position that the product is not a triglyceride, not an interesterified triglyceride, not a reesterified triglyceride or a fraction of a triglyceride. The product is a mixture of fatty acid esters made by the esterification of stanols with fatty acid esters."
To be considered for classification in heading 1516, an article must be a triglyceride. Based on the foregoing, 8001 Staest is not a triglyceride. Therefore, classification in heading 1516, HTSUS, is not permitted.
Protestant has proposed classification of 8001 Staest in heading 3404, HTSUS, covering Artificial waxes and prepared waxes, as an alternative to heading 1516. Chapter Note 5(a) to Chapter 34 indicates, in part, that heading 3404 does not apply to goods of heading 1516. Since we have determined that 8001 Staest is not a good of heading 1516, this exclusion does not apply.
The ENs to heading 34.04, HTSUS, contain certain criteria which goods must meet it they are to be classified in that heading. The mandatory elements are:
(1) a dropping point above 40 °C; and
(2) a viscosity, when measured by rotational viscometry, not exceeding 10 Pa.s (or 10,000 cP) at a temperature of 10 °C above their dropping point.
In addition, such products generally display the following properties :
(a) they take a polish when gently rubbed;
(b) their consistency and solubility depend largely on temperature;
(c) at 20 °C :
(i) some are soft and kneadable (but not sticky or liquid) (soft waxes), others are brittle (hard waxes);
(ii) they are not transparent but may be translucent;
(d) at temperatures above 40 °C, they melt without decomposing;
(e) just above their melting point they cannot easily be drawn into threads; and
(f) they are poor conductors of heat and electricity.
As part of protestant's supplementary submission, an additional sample and further independent laboratory test results, dated June 2, 2000, were provided for a product identified as Stanol Ester, Sito 70+, also known as 8001 Staest. These results have been verified by Customs Laboratory personnel and have been accepted.
Based upon the results of these tests and the above review of the product's manufacture and its characteristics, Customs believes that goods which conform to the specifications of these tests are classified in subheading 3404.90.50, HTSUS, which provides for artificial waxes and prepared waxes, other, other. This heading is preferred to heading 3824, HTSUS, which covers residual products of the chemical and allied industries, not elsewhere specified or included.
However, as has been stated earlier, protestant indicated that the 8001 Staest was an evolving product during the period the entries were being made. The product formulations were being "tweaked" to achieve the desired end result. Therefore, the laboratory results obtained in June 2000, represent the current version of 8001 Staest, not the versions that were imported in 1998 and 1999. Customs cannot apply the laboratory results to earlier product formulations. Accordingly, classification in subheading 3404.90.50, HTSUS, will not be correct for the goods entered in 1998 and 1999. When test results indicating the viscosity and drop point of the product are unavailable, the product will be classified in subheading 3824.90.9050, HTSUS.
HOLDING:
8001 Staest, imported after June 2000, which conforms to laboratory results of product samples taken at that period, will be classified in subheading 3404.90.50, HTSUS, which provides for artificial waxes and prepared waxes, other, other.
8001 Staest, imported during 1998 and 1999 for which laboratory results are unavailable will be classified in subheading 3824.90.9050, HTSUS, which covers residual products of the chemical and allied industries, not elsewhere specified or included.
8001 Staest, imported after June 2000, which does not conform to laboratory results of product samples taken at that period, will be classified in subheading 3824.90.9050, HTSUS.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division