CLA-2 CO:R:C:F 088191 RFC
District Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94126
RE: Decision on Application for Further Review of Protest No.
2809-90-000507, on the classification of certain vegetable
products
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of The Whole Herb Company, on March
22, 1990, against your decision in the tariff classification under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of certain vegetable products. The products were entered
under entry number 156-0010784 on September
22, 1989. The entry was liquidated on January 5, 1990.
FACTS:
There are two products under consideration in the instant
protest. The first product is from a composite herb known as
"Carthamus tinctorius." See Webster's Ninth New Collegiate
Dictionary 1036 (1989). This herb is commonly known as
"safflower." Id. The flower heads of this plant are commonly used
as a red dyestuff. Id. The instant product consists of ground
flower heads from this herb. The product is stated to be used in
potpourri.
The second product apparently consists of the seeds from a
tree known as "Oroxylum." See The Standard Cyclopedia of
Horticulture 2410 (1947) (Oroxylum is a tree with "seeds broadly
elliptic, compressed with a broad transparent wing"). The samples
of the product have no readily discernable scent. The product is
stated to be used as a filler in potpourri. The importer has
referred to this product in submissions as "paper flowers."
ISSUES:
(1) What is the proper tariff classification under the HTSUSA
of ground flower heads from the herb Carthamus tinctorius (which
is commonly known as "safflower")?
(2) What is the proper tariff classification under the HTSUSA
of seeds from the Oroxylum tree?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified
under the HTSUSA. The tariff classification of merchandise under
the HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S.
Rules of Interpretation are part of the HTSUSA and are to be
considered statutory provisions of law for all purposes. See
Sections 1204(a) and 1204(c) of the Omnibus Trade and
Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).
GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff schedule
(i.e., (1) merchandise is to be classified under the 4-digit
heading that most specifically describes the merchandise; (2) only
4-digit headings are comparable; and (3) merchandise must first
satisfy the provisions of a 4-digit heading before consideration
is given to classification under a subheading within this 4-digit
heading) and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, then according to
the other GRIs.
GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall
govern, mutatis mutandis, classification at subheading levels
within the same heading. Therefore, merchandise is to be
classified at equal subheading levels (i.e., at the same digit
level) within the same 4-digit heading under the subheading that
most specifically describes or identifies the merchandise.
The Explanatory Notes to the Harmonized Commodity Description
and Coding System (hereinafter "Harmonized System") represent the
official interpretation of the Customs Cooperation Council on the
scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th
Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-
90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although
not binding on the contracting parties to the Harmonized System
Convention or considered to be dispositive in the interpretation
of the Harmonized System, the Explanatory
Notes should be consulted on the proper scope of the Harmonized
System. Id
A review of both the schedule and the classifications in issue
reveals that three chapters merit consideration in the instant
classification analysis: chapters 6, 12, and 14. Chapter 6 covers
"live trees and other plants" and "bulbs, roots and the like" and
"cut flowers and ornamental foliage." Guidance concerning the
coverage of this chapter can be found in the general notes to the
Explanatory Notes thereto:
This Chapter covers all living plants, of a kind supplied by
nursery gardeners (including horticulturists) or florists,
which are in a condition suitable for planting or ornamental
purposes and also chicory plants and roots, other than roots
of heading 12.12, even if they are not commonly supplied by
nursery gardeners and florists. These range from trees,
shrubs and bushes to seedling vegetables including, inter
alia, plants for medicinal purposes. The Chapter does not
include seeds and fruit, or certain tubers and bulbs
(potatoes, onions, shallots and garlic) for which it is not
possible to make a distinction between the kinds used as
food and those for planting.
The Chapter also covers:
(1) Cut flowers and flower buds, foliage, branches and other
parts of plants, fresh, dried, dyed, bleached,
impregnated or otherwise prepared for ornamental
purposes.
(2) Bouquets, wreaths, floral baskets and similar florists'
wares.
See General Notes to the Explanatory Notes to Chapter 6 to the
Harmonized Commodity Description and Coding System.
A review of these general notes shows that excluded from chapter
6 are, among other things, (1) seeds and (2) products not
"otherwise prepared for ornamental."
From among the headings in chapter 6, the only ones that merit
consideration in the instant classification analysis are headings
0603 and 0604. Heading 0603 covers "cut flowers and flower buds
of a kind suitable for bouquets or for ornamental purposes, fresh,
dried, dyed, bleached, impregnated or otherwise prepared."
Guidance concerning the coverage of this heading can be found in
the Explanatory Notes thereto:
The heading covers not only cut flowers and buds as such,
but also bouquets, wreaths, floral baskets and similar
articles (e.g., posies and buttonholes) incorporating
flowers or flower buds. Provided that such bouquets, etc.,
have the essential character of florists' wares, they
remain in the heading even if they contain accessories of
other materials (ribbons, paper trimmings, etc.).
Cut branches of trees, shrubs or bushes, if bearing flowers
or flower buds (e.g., magnolia and certain types of roses),
are treated as cut flowers or flower buds of this heading.
The heading excludes flowers, petals and buds of a kind used
primarily in perfumery, in pharmacy, or for insecticidal,
fungicidal or similar purposes, provided that, in the
condition in which they are presented, they are not suitable
for bouquets or for ornamental use (heading 12.11). The
heading also excludes collages and similar decorative plaques
of heading 97.01.
See Explanatory Notes to Heading 0603 to the Harmonized Commodity
Description and Coding System.
The second heading, as indicated above, in chapter 6 that merits
consideration in the instant classification analysis is heading
0604. This heading covers "foliage, branches and other parts of
plants, without flowers or flower buds, and grasses, mosses and
lichens, being goods of a kind suitable for bouquets or for
ornamental purposes, fresh, dried, dyed, bleached, impregnated or
otherwise prepared." Guidance concerning the coverage of this
heading can be found in the Explanatory Notes thereto:
This heading covers not only foliage, branches, etc., as
such, but also bouquets, wreaths, floral baskets and similar
articles incorporating foliage or parts of trees, shrubs,
bushes or other plants, or incorporating grasses, mosses or
lichens. Provided that such bouquets, etc., have the
essential character of florists' wares, they remain in the
heading even if they contain accessories of other materials
(ribbons, wire frames, etc.).
Goods of this heading may bear decorative fruits, but if
they incorporate flowers or flower buds they are excluded
(heading 06.03).
The heading covers natural Christmas trees, provided that
they are clearly unfit for replanting (e.g., root sawn off,
root killed by immersion in boiling water).
The heading also excludes plants and parts of plants
(including grasses, mosses and lichens) of a kind used
primarily in perfumery, in pharmacy or for insecticidal,
fungicidal or similar purposes (heading 12.11) or for
plaiting (heading 14.01), provided that, in the condition in
which they are presented, they are not suitable for bouquets
or for ornamental purposes. The heading also excludes
collages and similar decorative plaques of heading 97.01.
See Explanatory Notes to Heading 0604 to the Harmonized Commodity
Description and Coding System.
A review of the above article descriptions and notes shows that
neither of the two products under consideration is properly
classified in chapter 6. The product identified as Carthamus
tinctorius (or safflower) is not one that is primarily or
principally used for "ornamental purposes"--as this terminology is
identified and described above in regard to headings 0603 and 0604.
As imported (i.e., ground flower heads), the product most certainly
does not meet the terms of either heading 0603 or heading 0604;
thus, it is not properly classified in chapter 6.
As the general notes set forth above indicate that "seeds"
are not properly classified in chapter 6, the product identified
as Oroxylum seeds is also not properly classified in chapter 6.
Moreover, as imported, this product does not meet the terms of
either heading 0603 or heading 0604 as one used for "ornamental
purposes."
The second chapter in which one or both of the instant
products may be potentially classified is chapter 12. The only
heading that merits consideration in this chapter is heading 1211.
It covers "plants and parts of plants (including seeds and fruits),
of a kind used primarily in perfumery, in pharmacy or for
insecticidal, fungicidal or similar purposes, fresh or dried,
whether or not cut, crushed or powdered." A review of the terms
of heading 1211 shows it to be an improper heading under which to
classify the instant products: Neither of the products has been
shown to be "used primarily" (or otherwise) in or for any of the
purposes listed in heading 1211.
The final chapter in which the instant products may be
classified is chapter 14. In this chapter, the only heading that
merits consideration is heading 1404. This is a "residual
heading." It covers "vegetable products not elsewhere specified
or included." Classification under heading 1404 would only occur
if the terms of no other heading in the schedule adequately
describe the instant products. The Explanatory Notes to this
heading state, in part, that it "covers all vegetable products,
not specified or included elsewhere in the Nomenclature." (Of
special significance to the classification of the product
identified above as Carthamus tinctorius (or safflower) is
Explanatory Note (A)(6) to heading 1404. Therein, the flowers of
safflower are identified as being appropriately classified under
heading 1404 as "raw vegetable materials of a kind used primarily
in dyeing or tanning.")
In light of the fact that neither of the instant products has
been found to be properly specified or included elsewhere in the
schedule, both of the instant products are properly classified
under the residual heading 1404.
HOLDING:
The product described above as the ground flower heads of the
herb plant Carthamus tinctorius (or safflower) is properly
classified under subheading 1404.10.0040, HTSUSA, which provides
for vegetable products not elsewhere specified or included, raw
vegetable materials of a kind used primarily in dyeing or tanning,
other.
The product described above as the seeds of the Oroxylum tree
is properly classified under subheading 1404.90.0000, HTSUSA, which
provides for vegetable products not elsewhere specified or
included, other.
Merchandise classified under heading 1404 may enter free of
duty for the year 1989.
The protest should be allowed. A copy of this decision should
be furnished to the protestant with the Form 19 notice of action.
Sincerely,
John Durant, Director