HQ H279270
CLA-2 OT:RR:CTF:TCM HQ H279270 TSM
Port Director, Port of Los Angeles, California
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Suite 1400
Long Beach, CA 90802
Attn: Gino R. Cerreta, Lead Import Specialist
Re: Protest and Application for Further Review No. 2704-16-100485; Classification of tung nut oil.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 2704-16-100485, timely filed on April 26, 2016, on behalf of George Degen & Co., Inc. (hereinafter “Protestant”) regarding the tariff classification of tung nut oil under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
Tung oil is an oil produced from tung nuts. Tung nuts are about one inch long and one inch wide, and contain an oil rich kernel enclosed by a thin shell. The kernel makes up 60% of the seed weight and has an oil content of between 40-60%. Tung oil (also known as China wood oil) is an inedible drying oil obtained by pressing the kernels of the fruit of the tung tree. The oil is used in paints, varnishes and other industry applications such as finishing oils for wood objects.
The subject merchandise was originally entered on March 11, 2016 and April 8, 2016, under subheading 1515.90.21, HTSUS, which provides for “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified: Other: Nut oils.” The subject merchandise was subsequently liquidated under subheading 1515.90.80, HTSUS, which provides for “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified: Other: Other.” Protestant claims that the subject merchandise should be classified in subheading 1515.90.21, HTSUS, as entered.
ISSUE:
Whether tung oil is classified under subheading 1515.90.21, HTSUS, as “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified: Other: Nut oils” or under subheading 1515.90.80, HTSUS, as “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified: Other: Other.”
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 0401-14-100073 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with New York Ruling Letter (NY) N237976, dated February 26, 2013, NY E82255, dated August 3, 1999, and NY N236143, dated December 17, 2012.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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.
In addition, 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 HTSUS at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 1515, HTSUS, provides, in pertinent part, the following:
This heading covers single, fixed vegetable fats and oils and their fractions… The following are of particular commercial importance:
* * *
(5) Tung oil, (China-wood oil), obtained from the seeds of different species of the genus Aleurites (e.g., A. fordii, A. montana). It is pale yellow to dark brown in colour, dries very rapidly and has preservative and waterproofing qualities. Its main use is in the manufacture of varnishes and paints.
* * *
The HTSUS provisions under consideration are as follows:
1515 Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified:
1515.90 Other:
1515.90.21 Nut oils
* * *
1515.90.80 Other
* * *
We note that this dispute is at the eight-digit level of classification. We agree with the Protestant that tung oil is described by the terms of heading 1515, HTSUS, which provides for “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified.” At issue here is whether tung oil is a “nut oil” of subheading 1515.90.21, HTSUS, or an oil “Other [than nut oil]” of subheading 1515.90.80, HTSUS.
The Explanatory Notes state that tung oil is obtained from seeds, and CBP consistently classifies seed oil under subheading 1515.90.80, HTSUS, as an “other” type of oil. See, e.g., HQ 966214, dated March 31, 2003 (camelia seed oil), NY N219376, dated June 22, 2012 (hemp seed oil), and NY N235901, dated December 19, 2012 (chili seed oil). While we agree that tung nut oil is a seed oil, it is specifically a nut oil. A nut is a particular type of seed. In Webster’s New World Dictionary 932 (3rd Coll. Ed. 1988), the term “nut” is defined as “the dry, one-seeded fruit of any of various trees or shrubs, consisting of a kernel, often edible, in a hard and woody or tough and leathery shell, more or less separable from the seed itself as the walnut, pecan, chestnut, acorn, etc.” Like all nuts, a tung nut is a seed enclosed by a tough outer shell.
In support of its position that tung oil is classified as a nut oil of subheading 1515.90.21, HTSUS, Protestant provided the following information: (1) prior to February 2007, tung oil was specifically provided for in subheading 1515.40.00, HTSUS, which was then changed to subheading 1515.90.21, HTSUS ; (2) the common meaning in the United States of the term “nut oil” includes tung nut oil and, as a result, such oil must be classified in 1515.90.21, HTSUS, the provision for nut oils; (3) classifying tung nut oil in 1515.90.21, HTSUS, is consistent with NY N237976, dated February 26, 2013 (classifying refined vegetable fat/oil obtained from the shea nut in subheading 1515.90.21, HTSUS); NY E82255, dated August 3, 1999 (classifying Kukui nut oil in subheading 1515.90.20, HTSUS); and NY N236143, dated December 17, 2012 (classifying sweet almond (kernel) oil in subheading 1515.90.21, HTSUS); and (4) the companies representing the vast majority of the tung oil industry in the United States have consistently entered their tung oil shipments under subheading 1515.90.21, HTSUS.
Upon review, we find that tung oil is a nut oil, which is provided for in subheading 1515.90.21, HTSUS. We note that this finding is consistent with CBP rulings on other nut oils. See NY N235898, dated December 17, 2012 (classifying oil extracted from the nut (kernel) of the Marula trees (Sclerocarya birrea) as a nut oil of subheading 1515.90.21, HTSUS) and NY N237976, dated February 26, 2013 (classifying oil extracted from the Shea nut under subheading 1515.90.21, HTSUS).
Accordingly, we conclude that tung oil is classified under subheading 1515.90.21, HTSUS, which provides for “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified: Other: Nut oils.”
HOLDING:
By application of GRIs 1 and 6, the subject tung oil is classified under heading 1515, HTSUS, and specifically under subheading 1515.90.21, HTSUS, which provides for “Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified: Other: Nut oils.” The 2017 column one general rate of duty is Free.
You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division