CLA-2 RR:CR:GC 964552ptl
Port Director
U.S. Customs Service
111 West Huron Street
Buffalo, NY 14202
RE: Protest 0901-00-100252; Novelice F Oil
Dear Port Director:
The following is our decision on Protest 0901-00-100252, against your classification of a product described as Novelice F Oil under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
According to information supplied by protestant, Novelice F consists of a number of non-hydrogenated oils. The product contains Choclin (a blend of non-hydrogenated but fractionated palm and shea oils [70% palm and 30% shea]) and non-hydrogenated soybean oil. The Novelice F in made up of 50% Choclin and 50% soybean oil.
The goods were entered between April and June 2000, under subheading 1517.90.2080CA, HTSUS, which provides for: Artificial mixtures of two or more of the products provided for in headings 1501 to 1515, inclusive, other, other; eligible for special tariff treatment as goods of Canada, pursuant to the North American Free Trade Agreement (NAFTA). The entries were liquidated on July 21, 2000, under subheading
1517.90.1080, HTSUS, which provides for: Artificial mixtures of two or more of the products provided for in headings 1501 to 1515, inclusive, containing
5 percent or more by weight of soybean oil or any fraction thereof, other. A timely protest was filed on August 25, 2000, in which protestant concedes the denial of NAFTA eligibility, but disputes Customs classification and claims the correct classification of the goods is subheading 1511.90.0000, HTSUS, which provides for: Palm oil and its fractions, whether or not refined, but not chemically modified, other.
ISSUE:
What is the classification of Novelice F Oil?
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 the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
1511 Palm oil and its fractions, whether or not refined, but not chemically modified:
* * *
1511.90.0000 Other
1517 Margarine; edible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of this chapter, other than edible fats or oils or their fractions of heading 1516:
* * *
1517.90 Other:
Artificial mixtures of two or more of the products provided for in headings 1501 to 1515, inclusive:
1517.90.10 Containing 5 percent or more by weight of soybean oil or any fraction thereof
* * *
1517.90.1080 Other
1517.90.20 Other
* * *
1517.90.2080 Other
As stated above, Novelice F contains 50 percent Choclin (a blend of 70 percent non-hydrogenated palm oil and 30 percent non-hydrogenated shea oil) and 50 percent non-hydrogenated soybean oil. Protestant contends that Novelice F, because it consists of a number of non-hydrogenated oils, is classified under subheading 1511.90.0000, HTSUS, which provides for: Palm oil and its fractions, whether or not refined, but not chemically modified: other. To reach this position, protestant argues that the "blend of non-hydrogenated oils can be considered of a single nature in that it contains only vegetable oils and ones that are processed only to the extent allowed in headings 1507 to 1515." Protestant states that it is the Choclin which imparts the essential character to the Novelice F. Protestant further states that the component which provides the essential character of the Choclin is the palm oil, since it accounts for the largest percentage and greatest value of that product. Protestant states that the product is excluded from heading 1517, HTSUS, because the ENs indicate that oils classified in that heading have been processed further than simply being refined.
In HQ 964654, dated February 22, 2002, Customs classified Choclin, a blend of two single oils in subheading 1517.90.2080, HTSUS. In that ruling, Customs stated that the ENs to Chapter 15 provide, in General Note (B), "Headings 15.07 to 15.15 of this Chapter cover the single (i.e., not mixed with fats or oils of another nature), fixed vegetable fats and oils mentioned in the headings, together with their fractions, whether or not refined, but not chemically modified." Headings 1507 to 1515 provide for various types of vegetable oils, including soybean oil (1507), palm oil (1511), and shea oil (1515, which is the "other" vegetable oil heading). The ENs indicate that the headings cover the single oil mentioned in the headings. In other words, heading 1507 covers the single oil mentioned, which is soybean. Heading 1511 covers the single oil mentioned, which is palm oil. The requirement that the headings cover a single oil is further clarified by the parenthetical description "not mixed with fats or oils of another nature." This statement refers to different types of vegetable oils which are derived from different vegetable materials.
Additional guidance regarding the scope of headings 1507 to 1515 is provided by the ENs to Chapter 15 which state, in relevant part, "These headings do not cover edible or inedible mixtures or preparations, or vegetable fats and oils that have been chemically modified (heading 15.16, 15.17 or 15.18 …)" (Emphasis in original)
Heading 1517 provides for Margarine; edible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of this chapter, other than edible fats or oils of heading 1516. In describing the types of products classified in this heading, the ENs to the chapter state, on page 133: "They are generally liquid or solid mixtures or preparations of: (1) Different animal fats or oils or their fractions; (2) Different vegetable fats or oils or their fractions; or (3) Both animal and vegetable fats or oils or their fractions. The ENs then discuss the types of processing which may be performed on these products and ingredients which may be added: "The products of this heading, the fats or oils of which may previously have been hydrogenated, may be worked by emulsification (e.g., with skimmed milk), churning, texturation (modification of the texture or crystalline structure), etc., and may contain small quantities of added lecithin, starch, colouring, flavouring, vitamins, butter or other milkfat (subject to the restrictions in Note 1 (c) to this Chapter)." (emphasis added) Clearly, the ENs indicate that the mixtures may be processed, and may contain added ingredients. However, it is also clear that the mixtures are not required to be processed, or have added ingredients to be classified in heading 1517.
Accordingly, because Novelice F is a mixture of three different oils, soybean, palm and shea, one of which is classified in heading 1507, another in heading 1511, and the third in heading 1515, it is classified by virtue of GRI 1 in subheading 1517, HTSUS.
HOLDING:
Novelice F, a mixture of non-hydrogenated oils, is classified in subheading 1517.90.1080, HTSUS, which provides for: Artificial mixtures of two or more of the products provided for in headings 1501 to 1515, inclusive, containing 5 percent or more by weight of soybean oil or any fraction thereof, other.
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