CLA–2 OT:RR:CTF:TCM H122355 NCD
Albert C. Newton
Acacia Lumber Trading
32838 NW Overlook St.
P.O. Box 387
Scappoose, OR 97056
RE: Revocation of New York Ruling Letters N020080, dated December 4, 2007, and N010591, dated May 16, 2007; Classification of planters made from coir
Dear Mr. Newton:
This letter is to inform you that U.S. Customs and Border Protection (CBP) has reconsidered New York Ruling Letter (NY) N020080, which was issued to Acacia Lumber Trading (“Acacia”) on December 4, 2007. In NY N020080, CBP classified coir planters under subheading 5305.00.00, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: “Coconut and other vegetable textile fibers, not elsewhere specified or included, raw or processed but not spun.” We have reviewed NY N020080 and found it to be incorrect with respect to the classification of the coir planters. For the reasons set forth below, we are revoking this ruling.
CBP has also reconsidered NY N010591, issued to Kord Products Inc. on May 16, 2007. In NY N010591, CBP classified a Fiber Grow Greenhouse Kit (“Greenhouse Kit”) under subheading 1404.90.90, HTSUS, which provides for: “Vegetable products not elsewhere specified or included: Other.” We have determined that NY N010591 is incorrect and, for the reasons set forth below, are revoking that ruling.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 49, No. 23, on June 10, 2015. No comments were received in response to the notice.
FACTS:
In NY N020080, CBP describes the subject merchandise as “a container used for planting potted or hanging plants, constructed from coconut fibers (coir).” The ruling further states that “the fibers are formed into a hollow cylindrical shape with a bottom, including a drain hole” and that “to form the fibers into a shape, Vaseline and clay are added.”
Similarly, the Greenhouse Kit at issue in NY N010591 consists of “five small rectangular fiber grow containers,” each of which “will be used as a holder for seeds to germinate.” A letter included in the ruling request states that the coir mold is made via the mixing of coconut husks with a water soluble latex glue and the subsequent molding of this mixture into shape. Included with the merchandise is a dark plastic tray with a thin clear plastic cover upon which the containers are placed. In classifying the product under heading 1404, HTSUS, CBP determined that the fiber grow containers, rather than the plastic tray, impart the essential character of the Greenhouse Kit.
ISSUE:
Whether the instant merchandise is properly classified as vegetable products under heading 1404, HTSUS, as coconut fibers under heading 5305, HTSUS, or as other molded or carved articles under 9602, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the United States 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 for all purposes. 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
Thus, the 2015 HTSUS provisions under consideration are as follows:
1404 Vegetable products not elsewhere specified or included:
1404.90 Other:
1404.90.90 Other:
* * *
5305 Coconut, abaca (Manila hemp or Musa textilis Nee), ramie and other vegetable textile fibers, not elsewhere specified or included, raw or processed but not spun
* * *
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:
9602.00.50 Other:
* * *
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 consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
As an initial matter, we note that headings 1404, HTSUS, and 9602, HTSUS, are “basket provisions,” into which merchandise should be classified only when it is not more specifically covered by another heading. See Headquarters Ruling Letter (HQ) 963233, dated December 13, 2000; HQ 951651, dated August 13, 1992. Accordingly, we first consider whether the products at issue are prima facie classifiable under heading 5305, HTSUS.
Heading 5305, HTSUS, provides for vegetable textile fibers that are raw or processed but not spun. EN 53.05 provides, in relevant part, as follows:
This heading covers vegetable textile fibres obtained from the leaves or fruit of certain monocotyledonous plants (e.g., coconut, abaca or sisal)…
Generally they are classified here whether raw, prepared for spinning (e.g., carded or combed into slivers), or in the form of tow or fibrous waste (obtained mainly during combing), yarn waste (obtained mainly during spinning or weaving) or garneted stock (obtained from rags or scrap rope or cordage, etc.).
However, fibres obtained from vegetable materials which, when raw or in certain other forms, fall in Chapter 14, are classified here only when they have undergone treatment indicating their use as textile materials, e.g., when they have been crushed, carded or combed in preparation for spinning.
The vegetable fibres classified here include:
Coconut. Coconut fibres (coir) are obtained from the external covering of the nut and are coarse, brittle and brown in colour. They are classified here whether in mass or in bundles.
Thus, based on the above EN, coir, which undergoes processing beyond the methods enumerated in the EN, is not covered by heading 5305, HTSUS. CBP has consistently classified coir that is in raw masses or bundles, carded, combed, or otherwise prepared for spinning, or in the form of waste or garneted stock, in heading 5305, but not when the coir is subjected to other preparations or processes not enumerated in the EN. See, e.g., HQ 961111, dated October 13, 1998 (“Classification under subheading 5305.19, HTSUS, is precluded as the sample coir fibers have undergone further manufacture and subheading 5305, HTSUS, is limited to just the coir textile fibers.”); see also HQ 956929, dated May 23, 1995 (ruling that treatment of coconut fibers with an agglutinating substance necessitated their classification outside of heading 5305, HTSUS); HQ 089765, dated July 15, 1991 (classifying coir fibrous waste under heading 5305); and HQ 088276, dated February 8, 1991 (classifying coir bundles under heading 5305).
In NY N020080, CBP describes the coir planters as “formed into hollow cylindrical shape” from a mixture of coir, Vaseline, and clay. Similarly, the Greenhouse Kit containers in NY N010591 are compositions of coconut husks and latex glue, which, after being mixed, are molded into rectangular containers designed to house seeds. Thus, neither the coir planters nor the Greenhouse Kit containers can be considered coir in raw, carded, combed, waste or garneted stock form. As heading 5305, HTSUS, does not extend to coir that has been mixed with adhesive materials and subsequently molded to form, both of the instant products fall outside the scope of the heading.
We accordingly consider remaining headings 1404, HTSUS, and 9602, HTSUS. Heading 1404, HTSUS, covers, among other things, “Vegetable Products Not Elsewhere Specified or Included.” EN 14.04 provides, in relevant part, that “[t]his heading covers all vegetable products, not specified or included elsewhere in the Nomenclature.” Our research indicates that coir is a type of vegetable fiber. See Industrial Applications of Natural Fibres: Structure, Properties, and Technical Applications, (pp. 197-218); Understanding Fabrics: From Fiber to Finished Cloth, (p. 3). As such, coir constitutes a vegetable product within the meaning of this term as it appears in EN 14.04. However, the Vaseline, clay, and glue with which the coir is mixed to form the instant products are not “vegetable products,” and thus are not described by heading 1404, HTSUS.
In contrast, we find that the products are described wholly by heading 9602, HTSUS, which covers “Other Molded or Carved Articles, Not Elsewhere Specified or Included.” EN 96.02 provides, with respect to molded or carved articles, as follows:
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…
For the purposes of these materials, the expression “moulded articles” means articles which have been moulded to a shape appropriate to their intended use.”
As mixtures of various materials that have been molded into shapes appropriate to their respective intended uses, the products at issue are prima facie classifiable under heading 9602, HTSUS. See HQ H230037, dated November 13, 2012 (determining that dinnerware made from areca palm leaves was classifiable under heading 9602 where the dinnerware had been heat-pressed into shape); and NY J899942, dated November 4, 2003 (ruling that a garden pot molded to form from vegetable fiber was properly classified under heading 9602). Moreover, unlike heading 1404, HTSUS, which describes only the coir components of the products, heading 9602, HTSUS, covers both products, as molded mixtures of various materials, in their entireties. See CamelBak Prods., LLC v. United States, 704 F. Supp. 2d 1335, 1339 (Ct. Int'l Trade 2010). Accordingly, the products at issue are properly classified under heading 9602, HTSUS.
Even assuming arguendo that the instant products are prima facie classifiable under both heading 1404, HTSUS, and heading 9602, HTSUS, they nevertheless remain properly classified under the latter heading by operation of GRI 3. GRI 3 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:
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 HQ H230037, we determined that heading 9602, HTSUS, is more difficult to satisfy than heading 1404, HTSUS, because the former specifies the manner in which any subject vegetable matter must be worked whereas the latter broadly covers all vegetable products in any form. There, we concluded that food-grade disposable dinnerware made from areca palm nut leaves, a vegetable matter, was properly classifiable under heading 9602, HTSUS, because the leaves had been molded into plate shapes. In the instant case, both the coir planters and Greenhouse Kit are similarly made of a vegetable matter, coir, which has been molded into rectangular container shapes. As in HQ H230037, even though the instant products contain vegetable matter, they are more specifically described by the manner in which this material is worked. Accordingly, even if GRI 3 applied, our conclusion that the instant products are properly classified under heading 9602, HTSUS, would remain unchanged.
HOLDING:
By application of GRI 1, the coir planters and Greenhouse Kit are classified under heading 9602, HTSUS, specifically under 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 column one, general rate of duty is 2.7 % ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
New York Ruling Letters N020080, dated December 4, 2007, and N010591, dated May 16, 2007, are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
CC: Mr. Jamal Ahmed
Kord Products Inc.
C/O Farrow International Trade Consulting
5397 Eglinton Avenue West, Suite 220
Toronto, Ontario M9C 5K6