OT:RR:CTF:FTM H329655 BJK
Mr. Michael Dahm Cole International USA Inc. 1775 Baseline Road Grand Island, NY 14072
RE: Modification of NY N311042; Classification of Anchovy Oil
Dear Mr. Dahm:
This is in reference to New York Ruling Letter (NY) N311042, dated April 8, 2020, concerning the tariff classification of Omega-3 Food Grade Oils imported from China, specifically oils derived from anchovies (anchovy oil) and a marine microalgae (Schizochytrium limacinum) (algae oil), respectively. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the oils under subheading 1516.20.9000, Harmonized Tariff Schedule of the United States (Annotated) (HTSUSA), which provides for “Animal or vegetable fats and oil and their fractions, partly or wholly hydrogenated, inter-esterified, re-esterified or elaidinized, whether or not refined, but not further prepared: Vegetable fats and oils and their fractions: Other.” We have reviewed NY N025677 and find it to be in error regarding the tariff classification of anchovy oil under subheading 1516.20.9000, HTSUSA. This ruling only concerns the classification of anchovy oil. For the reasons set forth below, we hereby modify NY N311042.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on May 3, 2023, in Volume 57, Number 17, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
NY N311042 described the product at issue as follows:
The subject merchandise under review is oils derived from anchovy and a marine microalgae (Schizochytrium limacinum), respectively. According to the flowchart submitted upon request each article will be undergo refining, deacidification, esterification, washing, molecular distillation, re-esterification, winterization, deodorization, decoloration and the addition of an antioxidant (tocopherols). The Anchovy Oil and Algae Oil will be imported in steel drums with a net weight of 190 kilogram.
ISSUE:
Whether anchovy oil is classified under subheading 1516.10, HTSUS, as “Animal fats and oils and their fractions” or under subheading 1516.20, HTSUS, as “Vegetable fats and oils and their fractions”?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied in order.
The 2023 HTSUS provisions under consideration are as follows:
1516 Animal, vegetable or microbial fats and oils and their fractions, partly or wholly hydrogenated, inter-esterified, re-esterified or elaidinized, whether or not refined, but not further prepared:
1516.10 Animal fats and oils and their fractions
1516.20 Vegetable fats and oils and their fractions
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN for Chapter 15, HTSUS, provides in pertinent part that:
This Chapter covers:
Animal, vegetable or microbial fats and oils, whether crude, purified or refined or treated in certain ways (e.g., boiled, sulphurised or hydrogenated).
* * *
The EN for heading 15.16, HTSUS, provides in pertinent part that:
This heading covers animal, vegetable or microbial fats and oils, which have undergone a specific chemical transformation of a kind mentioned below, but have not been further prepared.
In NY N311042, anchovy oil is classified under subheading 1516.20, HTSUS, which provides for “Animal, vegetable or microbial fats and oils and their fractions, partly or wholly hydrogenated, inter-esterified, re-esterified or elaidinized, whether or not refined, but not further prepared: Vegetable fats and oils and their fractions.” At the outset, we note the error of classifying oil derived from anchovies under subheading 1516.20, HTSUS, as “vegetable fats and oils and their fractions.”
Based on its description, composition, and definition, the subject anchovy oil is derived from anchovies. The Court of International Trade has found that anchovies are a small fish belonging to the order Clupeiformes and the family Engraulidae. See Alexandria Int’l, Inc., v. United States, 13 C.I.T. 689, 693 (August 31, 1989). As a fish, anchovies belong to a group of animals considered aquatic vertebrates. Oil derived from anchovies, therefore, are considered “animal fats and oils,” and not “vegetable fats and oils.” Consequently, anchovy oil is classified under subheading 1516.10.00, HTSUS, which provides for animal fats and oils and their fractions.
HOLDING:
By application of GRI 1, the anchovy oil is classified under subheading 1516.10.00, HTSUS, which provides for: “Animal, vegetable or microbial fats and oils and their fractions, partly or wholly hydrogenated, inter-esterified, re-esterified or elaidinized, whether or not refined, but not further prepared: Animal fats and oils and their fractions.” The 2023 column one, general duty rate for this subheading is 7 cents per kilogram.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 1516.10.00, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, HTSUS, in addition to subheading 1516.10.00, HTSUS, listed above.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N311042, dated April 4, 2020, is hereby MODIFIED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director Commercial and Trade Facilitation Division
cc: Mr. Harry Hu
Skuny BioScience Co., Ltd.
No. 81 Industry Rd.
Pujiang Industry Park
Chengdu, Sichuan 611639, P.R. China.
NovasPure Nutrition Inc.
3728 North Fraser Way
Burnaby, BC, V5J 5G1, Canada