CLA-2 RR:CR:GC 960606ptl
Port Director
U.S. Customs Service
112 W. Stutsman Street
Pembina, ND 58271-4102
RE: Protest 3401-97-100015; Barbecue lighter fluid.
Dear Port Director:
The following is our decision on Protest 3401-97-100015,
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of barbecue lighter fluid (BBQ
Fluid).
FACTS:
The merchandise which is the subject of the protest was
entered on June 4, 1996, and consisted of 1914 cases of "Schunck
BBQ Fluid" (858 cases of 12/32 ounce containers and 1056 cases of
6/64 ounce cases) totaling 5742 gallons, or 21,819.6 liters.
The merchandise had been entered in CA2710.00.25, HTSUS, as
being a Canadian product, eligible for preferential tariff
treatment under the North American Free Trade Agreement (NAFTA).
The entry was liquidated on January 3, 1997, under the provision
for Petroleum oils and oils obtained from bituminous minerals,
other than crude; preparations not elsewhere specified or
included, containing by weight 70 percent or more of petroleum
oils or of oils obtained from bituminous minerals, these oils
being the basic constituents of the preparations: Naphthas
(except motor fuel or motor fuel blending stock) in subheading
2710.00.2500, HTSUS, with duty at the column 1 general rate of
10.5 cents per barrel. A timely protest under 19 U.S.C. 1514 was
received on January 13, 1997.
The protest claim, in Section III of Customs Form 19, reads,
in pertinent part, as follows:
"Re: Barbecue Lighter Fluid (Ashland Chemical & Shell
Canada)
We hereby respectfully request that you review the attached
NAFTA Cert. from RW Packaging along with the required
supporting documents from suppliers for the above referenced
BBQ Fluid. The ingredients used in the production come from
Canada or the USA. The ingredients are then processed in
Canada, and then sold in bulk to RW Packaging. RW Pkg then
bottles this product for retail sales."
ISSUE:
Is the barbecue lighter fluid eligible for duty-free
treatment under the NAFTA?
LAW AND ANALYSIS:
There is no disagreement over the proper heading in which
the imported article is classified. Both Customs and the
importer agree that the merchandise is classified in heading
2710, HTSUS. There is evidence that the correct subheading for
this product may be in a subheading other than that which was
used at the time of entry; however, tariff classification is not
the protest issue. The protest was filed because Customs
disallowed the protestant's claim that the merchandise should be
allowed preferential tariff treatment under the provisions of the
NAFTA.
General Note 12 of the Harmonized Tariff Schedule of the
United States (HTSUS), which provides rules for determining
whether merchandise is eligible for preferential tariff treatment
under the NAFTA, provides as follows:
"12(b) For the purposes of this note, goods imported
into the customs territory of the United States are eligible
for the tariff treatment and quantitative limitations set
forth in the tariff schedule as "goods originating in the
territory of a NAFTA party" only if--
(i) they are goods wholly obtained or produced
entirely in the territory of Canada, Mexico and/or the
United States; or
(ii) they have been transformed in the territory
of Canada,
Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of
this note,
each of the non-originating materials used in the
production of such goods undergoes a change in tariff
classification described in subdivisions (r), (s) and
(t) of this note or the rules set forth therein, ..."
The protestant has provided Customs many documents to
support its assertion that the merchandise qualifies for
preferential treatment under the NAFTA. However, because these
documents have been submitted in an unorganized manner and
without any narrative to relate one to another, they have tended
to confuse, rather than clarify, the issue.
The basis of the protest involves the question of the
country of origin of the BBQ Fluid. BBQ Fluid is a petroleum
distillate processed by the distillation of crude oil and is
classified in heading 2710, HTSUS. Crude oil is classified in
heading 2709, HTSUS.
The protestant has submitted several NAFTA Certificate of
Origin documents which show that the BBQ Fluid was produced
either in Canada by Shell, Canada, or in the United States by
Basis Petroleum, Inc. (Formerly Phibro Energy USA). Other
documents indicate that this BBQ Fluid was then supplied in bulk
to RW Packaging Ltd. (in Canada) where it was packaged for
shipment to the United States. While none of these documents
completely address the issue, and some actually complicate it,
they do allow us to reach the following determinations.
The tariff shift required for NAFTA origination, as stated
in General Note 12(t)/27.4, HTSUS, is "a change to headings 2710
through 2715 from any heading outside that group." Non-originating crude oil, as entered into the territory of a NAFTA
party, is classifiable in heading 2709, which is outside the
range of headings 2710 through 2715, and, so, qualifies as an
originating product in its manufactured form as a petroleum
distillate of heading 2710. Based on all the information
provided, the BBQ Lighter Fluid appears to be a good originating
in the territory of a NAFTA party, as described under General
Note 12(b)(i), HTSUS, if made from Canadian crude oil, or under
General Note 12(b)(ii)(A), HTSUS, if made from a non-originating
crude oil. If the product were manufactured by Shell Canada,
that certificate, with its accompanying correspondence, would
appear to document its NAFTA eligibility; if produced by Phibro
Energy, that certificate, with its accompanying correspondence,
would appear to document its NAFTA eligibility.
We find that the protestant has provided sufficient
information to determine that the BBQ Lighter Fluid is an
originating good which meets the requirements of General Note 12,
HTSUS, and should be accorded the NAFTA preferential tariff
treatment. The subheading classification of the merchandise
under the HTSUS will depend on a chemical analysis of the
product.
HOLDING:
The protest should be GRANTED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division