CLA-2 RR:CR:GC 962115 MGM
Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94105
Re: Protest 2809-98-100360; 45% Stearic Acid / 55% Palmitic Acid Solution
Dear Port Director:
This is our decision on protest 2809-98-100360, concerning your classification of a 45% stearic acid / 55% palmitic acid solution under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject commodity is a solid solution of 44-45% stearic acid, 55-56% palmitic acid, and 0.1% oleic acid. Stearic acid (C.A.S. 57-11-4), also known as n-octadecanoic acid, has the chemical formula C18H36O2. It is a saturated fatty acid, that is, it consists of a carboxyl group attached to a hydrocarbon tail which has no double bonds. Palmitic acid (C.A.S. 57-10-3), also known as n-hexadecanoic acid, has the chemical formula C16H32O2. It is also a saturated fatty acid.
The five entries whose classification is here protested were made in June through December of 1997, and liquidated in April of 1998. A protest was timely filed on June 24, 1998.
ISSUE:
Whether the term “stearic acid,” as used in subheading 3823.11.00, HTSUS, encompasses a solid solution of 45% stearic acid and 55% palmitic acid?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. See, T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The following headings are relevant to the classification of this product:
2915 Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives:
2915.70.00 Palmitic acid, stearic acid, their salts and esters
* * * * * * * * * * * *
3823 Industrial monocarboxylic fatty acids; acid oils from refining; industrial fatty
alcohols:
Industrial monocarboxylic fatty acids; acid oils from refining:
3823.11.00 Stearic acid
3823.19 Other
3823.19.20 Derived from coconut, palm-kernel or palm oil
Insofar as classification in heading 2915 is concerned, the headings of Chapter 29 are, with few exceptions, restricted to separate chemically defined compounds. Note 1(a), Chapter 29, HTSUS; General EN, Chapter 29, HTSUS; Diachem Industries Ltd. v. United States, Slip Op. 98-128 (CIT 1998). Here, the 45% stearic acid / 55% palmitic acid solution is not a single chemically defined species and is excluded from Chapter 29.
The appraised classification and the protestant’s claimed classification both fall within the “Industrial monocarboxylic acids; acid oils from refining” provision of heading 3823, HTSUS. However, protestant contends that the liquidated classification, as stearic acid, is in error and that the merchandise is properly classified in the provision for goods “other” than stearic acid, oleic acid, or tall oil fatty acids. In determining the scope of the term “stearic acid,” it is noted that tariff terms are to be construed in accordance with their common and commercial meanings, which are presumed to be the same Meyer & Lange v. United States, 6 Ct. Cust. Appls. 181, T.D. 35436 (1915); Lonza, Inc. v. United States, 46 F.3d 1098, 1106 (Fed. Cir. 1995). “Tariff acts are not drafted in terms of science, but in terms of commerce, which is presumptively that in common use, and, in the absence of a contrary legislative intent, tariff terms are not to be construed according to their scientific meaning, where that meaning differs from the common or commercial meaning.” Ruth F. Sturm, CUSTOMS LAW AND ADMINISTRATION § 52.6, 45, (3rd ed. 1997) (cites omitted). “Stearic acid” has both a commercial meaning and a scientific meaning:
To avoid confusion of terms, it is necessary to distinguish between fatty acids, as defined by the organic chemist and as commercially produced and sold. The term “stearic acid” is an example of this confusion.
Here the commercial product name has priority, going back to the splitting of tallow for the manufacture of hard, high-melting candles, before individual acids of definite composition had been isolated or identified. Historically, commercial stearic acid has been a crystalline combination of the chemist’s palmitic and stearic acids in a 55% to 45% ratio, with some small percentage of unsaturated acids.
E. Scott Pattison, INDUSTRIAL FATTY ACIDS 3 (1959). Use of the term “stearic acid” to describe products which contain 50% or more palmitic acid is corroborated by other sources. See, e.g., Daniel Swern, 1 BAILEY’S INDUSTRIAL OIL AND FAT PRODUCTS 23-4 (4th ed. 1979); 4 ENCYCLOPEDIA OF CHEMICAL TECHNOLOGY 849 (3rd ed. 1978). This construction of “stearic acid” is further bolstered by the tariff itself. With exceptions inapplicable in this case, separate chemically defined compounds are excluded from Chapter 38, thus the term “stearic acid” as used therein must refer to a combination of two or more compounds. Note 1 (a), Chapter 38, HTSUS.
The Explanatory Notes also indicate that “stearic acid” as used in subheading 3823.11.00, HTSUS, encompasses the instant merchandise. The ENs state that, in the separation of solid and liquid fatty acids, “The solid part (commercially known as stearic acid or stearin) consists mainly of palmitic and stearic acids with a small proportion of unsaturated fatty acids. The ENs go on to state “This heading includes, inter alia: [c]ommercial stearic acid (stearin).” EN 38.23 (A); EN 38.23 (A) (1).
The protestant asserts that the percentage of stearic acid in the instant product “is far lower than that typically found in commercial stearic acid.” However, this is in conflict with the published works referred to above.
HOLDING:
The protest should be DENIED. Solid solution of 45% stearic acid and 55% palmitic acid is classified in subheading 3823.11.00, HTSUS.
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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division