H312647

 HQ H312647 February 16, 2021 OT:RR:CTF:CPMM H312647 RRB CATEGORY: Classification TARIFF NO: 3823.19.2000 Port Director Port of Baltimore U.S. Customs and Border Protection 40 South Gay Street Baltimore, MD 21202 Attn: Tatum O’Brien, Supervisory Import Specialist Laurie A. Rivers, Import Specialist Re: Application for Further Review of Protest No. 1303-20-102258; tariff classification of Palmitic Acid 85%-DT80 (Beads) Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1303-20-102258, timely filed on July 17, 2020, by Grunfeld, Desiderio, Leibowitz, Silverman & Klestadt LLP (“GDLSK”), on behalf of Darby Trading Inc. (“Protestant”). This AFR concerns U.S. Customs and Border Protection’s (“CBP”) of merchandise described as “Palmitic Acid 85%-DT80 (Beads) (hereinafter, “DT 80 Palmitic Acid”). FACTS: The protested merchandise, DT 80 Palmitic Acid, is described on the commercial invoice as “Palmitic Acid 85%-DT 80 (Beads).” According to the Protestant, DT 80 Palmitic Acid is produced by refining crude palm oil through a distillation process to remove Palm Fatty Acid Distillate (“PFAD”). The remaining fraction is then refined into a bleached and deodorized palm oil that is fractionated into an edible Refined Bleached Deodorized Stearin (“RBDPS”). The triglycerides are saponified and the glycerol fraction is removed, leaving a crude fatty acid palm stearin. The crude fatty acid palm stearin is then further fractionated into three fractions of varying purity, 95% and 99% palmitic acid, and a residual mixture. The 95% palmitic acid is then mixed with 50% palmitic acid to produce the protested merchandise, consisting of approximately 86.9% palmitic acid. According to the specification sheet submitted by the Protestant, the DT 80 Palmitic Acid is composed of the following: Crude Fat: 99% min Total Fatty Acids: 98% min Free Fatty Acids, as Palmitic: 96-99% min Moisture: 0.5% min Typical Fatty Acid Profile: C12:0 Lauric Acid: 2% max C14:0 Myristic Acid: 5% max C16:0 Palmitic Acid: 80-90% max (typical 85%) C18:0 Stearic Acid: 10% max C18:1 Oleic Acid: 4-12% C18:2 Linoleic Acid: 1-6% The certificate of analysis submitted with the Protest and AFR confirms the ingredient breakdown for DT 80 Palmitic Acid and identifies the palmitic acid content as 86.9%. The final DT 80 Palmitic Acid product is a beaded product containing a combination of fatty acids, including palmitic, lauric, myristic, stearic, oleic and linoleic acids. The Protestant further states that the final product is mixed with other ingredients after importation for feeding dairy cows. The protested merchandise consists of one (1) entry that was entered at the Port of Baltimore (“Port”) on November 13, 2019, and was liquidated on July 3, 2020 under subheading 2915.70.0110, HTSUSA (“Annotated”) (2019), as “Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivative: Palmitic acid, stearic acid, their salts and esters: Palmitic acid.” The Protestant filed this Protest and AFR on July 17, 2020, asserting that all of the subject merchandise is properly classified under subheading 3823.19.2000, HTSUSA (2019), as “Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty alcohols: Industrial monocarboxylic fatty acids; acid oils from refining: Other: Derived from coconut, palm-kernel or palm oil” at a duty rate of 2.3% ad valorem. ISSUE: Whether Palmitic Acid 85%-DT80 (Beads) is classified under subheading 2915.70.0110, HTSUSA, as “Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivative: Palmitic acid, stearic acid, their salts and esters: Palmitic acid,” or under subheading 3823.19.2000, HTSUSA, as “Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty alcohols: Industrial monocarboxylic fatty acids; acid oils from refining: Other: Derived from coconut, palm-kernel or palm oil.” LAW AND ANALYSIS: The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further Review of Protest Number 1303-20-102258 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been decided on by CBP or by the Customs courts. Classification under the 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 GRIs 2 through 6 may then be applied in order. The 2019 provisions under consideration are as follows: 2915 Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivative: 2915.70.01 Palmitic acid, stearic acid, their salts and esters: 2915.70.0110 Palmitic acid. . . 3823 Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty alcohols: Industrial monocarboxylic fatty acids; acid oils from refining: 3823.19 Other 3823.19.2000 Derived from coconut, palm-kernel or palm oil. . . * * * * Note 1(a) to chapter 29, HTSUS, provides, in pertinent part: Except where the context otherwise requires, the headings of this chapter apply only to: Separate chemically defined organic compounds, whether or not containing impurities; Note 1(a) to chapter 38, HTSUS, provides, in pertinent part: This chapter does not cover: Separate chemically defined elements or compounds with the exceptions of the following: Artificial graphite (heading 3801); Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products put up as described in heading 3808; Products put up as charges for fire-extinguishers or put up in fire-extinguishing grenades (heading 3813); Certified reference materials specific in note 2 below; Products specified in note 3(a) or 3(c) below. * * * * The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The EN 29.15 states, in pertinent part: This heading excludes: … (d) Fatty acids of a purity of less than 90% (calculated on the weight of the dry product) (heading 38.23). The EN 38.23 states, in pertinent part: Industrial monocarboxylic fatty acids are generally manufactured by the saponification or hydrolysis of natural fats or oils. Separation of solid (saturated) and liquid (unsaturated) fatty acids is usually done by crystallisation either with or without solvent. The liquid part (commercially known as oleic acid or olein) consists of oleic acid and other unsaturated fatty acids (e.g. linoleic and linolenic acids) together with small amounts of saturated fatty acids. The solid part (commercially known as stearic acid or stearin) consists mainly of palmitic and stearic acids with a small portion of unsaturated fatty acids. The heading includes, inter alia: … (4) Distilled fatty acids which are obtained after hydrolytic splitting of various fats and oils (e.g., coconut oil, palm oil, tallow) followed by a purification proc

The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3).Further Review of Protest Number 1303-20-102258 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been decided on by CBP or by the Customs courts. Classification under the 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 GRIs 2 through 6 may then be applied in order. The 2019 provisions under consideration are as follows:2915 Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivative:2915.70.01 Palmitic acid, stearic acid, their salts and esters: 2915.70.0110 Palmitic acid. . . 3823 Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty alcohols: Industrial monocarboxylic fatty acids; acid oils from refining:3823.19 Other3823.19.2000 Derived from coconut, palm-kernel or palm oil. . .* * * *Note 1(a) to chapter 29, HTSUS, provides, in pertinent part:Except where the context otherwise requires, the headings of this chapter apply only to:Separate chemically defined organic compounds, whether or not containing impurities; Note 1(a) to chapter 38, HTSUS, provides, in pertinent part:This chapter does not cover:Separate chemically defined elements or compounds with the exceptions of the following:Artificial graphite (heading 3801);Insecticides, rodenticides, fungi