CLA-2 OT:RR:CTF:TCM HQ H230037 HvB
TARIFF NO: 9602.00.50
Mrs. Shweta Upadhyay
2600 Scofield Ridge Parkway #716
Austin, Texas 78727
RE: Classification of food-grade disposable dinnerware made from areca palm leaves
Dear Mrs. Upadhyay:
This is in response to your request, dated May 30, 2012, to our National Commodity Specialist Division (“NCSD”) for a ruling on the classification of food-grade disposable dinnerware made from fallen areca nut palm leaves. NCSD sent your request to us for a response. Your submission included samples, some of which were sent to the U.S. Customs and Border Protection (“CBP”) Office of Laboratory and Scientific Services (“OLSS”) for analysis.
FACTS:
The instant product consists of disposable plates and bowls (or “dinnerware”) made from dried areca nut palm leaves, which are collected in Tamilnadu, India. You state that the leaves are cleaned with high pressure water, steamed, and then UV sterilized. Then, the leaves are “heat pressed” into shape via a hydraulic, manual rotary, or pedal press which features a heated mold. You also indicate the dinnerware will naturally decompose in 2 to 3 months.
The entire manufacturing process occurs in Tamilnadu, India. The importer plans to enter the goods through the Port of Houston, Texas.
CBP OLSS, Report # NY20121683, dated August 30, 2012, confirmed that the submitted samples are constructed from areca nut palm leaves.
ISSUE:
Whether the instant disposable plates and bowls are classifiable under heading 1404, HTSUS, as “vegetable products not elsewhere specified or included”, or in heading 9602, HTSUS, which provides for “… other molded or carved articles, not elsewhere specified or included…”?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification 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 HTSUS provisions at issue are as follows:
1404 Vegetable products not elsewhere specified or included
9602 Worked vegetable or mineral carving material and articles of these materials; molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included; worked, unhardened gelatin (except gelatin of heading 3503) and articles of unhardened gelatin
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System 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 the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 96.02 provides, in pertinent part, as follows:
(II) MOULDED OR CARVED ARTICLES OF WAX, OF STEARIN, OF NATURAL GUMS OR NATURAL RESINS OR OF MODELLING PASTES, AND OTHER MOULDED OR CARVED ARTICLES, NOT ELSEWHERE SPECIFIED OR INCLUDED; WORKED, UNHARDENED GELATIN AND ARTICLES OF UNHARDENED GELATIN
This group includes, on the one hand, moulded and carved articles of various materials, provided those articles are not specified or included in other headings of the Nomenclature (e.g., articles of plastics Chapter 39, or of ebonite Chapter 40). It also covers worked unhardened gelatin and articles thereof (other than goods of heading 35.03 or Chapter 49).
For the purposes of these materials, the expression “moulded articles” means articles which have been moulded to a shape appropriate to their intended use. On the other hand, materials moulded in the shape of blocks, cubes, plates, bars, sticks, etc., whether or not impressed during moulding, are not included.
Heading 9602 provides for “other molded or carved articles, not elsewhere specified or included.” The tariff term “molded” is not defined in the HTSUS. When a tariff term is not defined by the HTSUS, "the term’s correct meaning is its common meaning." Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576. The Oxford English Dictionary, 3rd Edition (2003) defines the term “moulded” as “that has been shaped or moulded; spec. made or cut according to a mould; pressed or cast (as) in a mould.”
Consistent with this definition, in a decision concerning the issue of whether “wickless wax” was classifiable in heading 9602, we defined the term “mold”, as follows: “[t]o shape (fluid or plastic matter) into a required shape by pouring or pressing into a hollow form or matrix; to press or cast in or into a particular form”. See Headquarter Ruling Letter (“HQ”) H105015 (December 7, 2010) citing The Oxford English Dictionary (2nd Ed. 1989).
We note that the instant dinnerware meets the definition of the term “molded” as they are pressed into particular forms via a heated mold. The EN to 96.02 explains that heading 9602 encompasses “molded and carved articles of various materials, provided those articles are not specified or elsewhere included.” In addition, the EN goes on to define the term “molded articles” to “mean articles which have been moulded to a shape appropriate to their intended use.” Moreover, CBP has had the occasion to classify substantially similar merchandise. In New York (“NY”) L83105, dated March 17, 2005, NY N042135, dated November 14, 2008, and NY N069639, dated August 17, 2009, we classified disposable plates and bowls made from fallen areca palm leaves in heading 9602, HTSUS, as “molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included.” See also NY J89511, dated October 21, 2003, classifying disposable plates made from wheat bran. Like the instant dinnerware, the plates and bowls subject to these rulings were also heat-pressed into shape. Thus, the instant articles are classifiable in heading 9602, HTSUS.
However, we note that the articles are made from palm leaves, which is a “vegetable product.” As such, they are classifiable as “vegetable products not elsewhere specified or included” which is provided under heading 1404, HTSUS. In NY N102797, dated May 4, 2010, we classified “Sweet Palm Tubes” which are described as “ready made tobacco tubes made from the Cordio dichotoma tree leaves. We indicated that the leaves are moistened, rolled into shape, and then dried. Since the subject dinnerware is prima facie classifiable in two or more headings under the HTSUS, we apply GRI 3, which provides, in pertinent part, as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
GRI 3(a) is known as the "rule of relative specificity." See Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998) (Orlando Food). Where articles can be classified under two HTSUS headings, under GRI 3(a) the classification "turns on which of these two provisions are more specific." Orlando Food, 140 F.3d at 1441. Courts undertaking the GRI 3(a) comparison "look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty." Faus Group, Inc. v. United States, 581 F.3d 1369 (Fed. Cir. 2009) (quoting Orlando Food, 140 F.3d at 1441).
In this particular case, it is more difficult to satisfy the provision for “molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included” than the provision for vegetable products not elsewhere specified or included”. The phrase “molded or carved articles” specifies the manner in which the subject vegetable matter must be further worked. On the other hand, heading 1404, HTSUS, merely covers vegetable products of a general nature. The instant plates and bowls are subject to a heated mold and pressed into shape. Accordingly, the instant product is classified as an “other molded or carved articles, not elsewhere specified or included” in heading 9602, HTSUS.
HOLDING:
By application of GRI 3(a), the subject areca palm leave plates and bowls are classified in heading 9602, HTSUS, specifically subheading 9602.00.50, HTSUS, which provides for “Worked vegetable or mineral carving material and articles of these materials; molded or carved articles of wax, of stearin, of natural gums or natural resins, of modeling pastes, and other molded or carved articles, not elsewhere specified or included; worked, unhardened gelatin (except gelatin of heading 3503) and articles of unhardened gelatin.” The 2012 column one, general rate of duty is 2.7 % ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff, Classification and Marking Branch