HQ H263914
CLA-2 OT:RR:CTF:TCM HQ H263914 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: Fernando A. Biscarra, Senior Import Specialist
Re: Protest and Application for Further Review No. 2704-2014-101534; Classification of certain water hyacinth storage baskets.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 2704-2014-101534, timely filed on October 22, 2014, on behalf of Ross Procurement Inc. (“Ross Procurement” or “Protestant”) regarding the tariff classification of a set of three water hyacinth storage baskets under the Harmonized Tariff Schedule of the United States (“HTSUS”). Pursuant to the Protestant’s request, a meeting regarding this matter was held with members of my staff on February 3, 2016.
FACTS:
The item is described as a “Water Hyacinth Storage Basket” that is imported as a set of three storage baskets. The baskets are made directly to shape from the stems of the water hyachinth plant. The baskets are imported in the following sizes: (1) Large (17.3” x 13.8” x 24.8”); (2) Medium (15.4” x 11.8” x 23.2”); and (3) Small (13.4” x 9.8” x 21.7”).
Samples of the subject merchandise were provided to this office, and are displayed below:
According to the Protestant, the subject water hyacinth baskets are manufactured as follows:
The water hyacinth is harvested and the damaged parts of the plant are cut off;
The water hyacinth rods are exposed to sunshine at a temperature of 30-40 degrees Celsius for a duration of 3-4 days;
The dried out water hyacinth rods are then woven over the metal or wooden frame of the item being manufactured;
The finished product is then cleaned with water before again being exposed to sunshine at a temperature of 30-40 degrees Celsius for a duration of 1-2 days.
According to the record, the subject merchandise was originally entered on January 26, 2014 under subheading 4602.19.1700, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Other: Wickerwork.” On April 25, 2014, the subject merchandise was liquidated under subheading 4602.19.1800, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Other: Other.” Protestant claims that the subject merchandise should be classified in subheading 4602.19.1700, HTSUS, as entered.
ISSUE:
Whether the water hyacinth storage baskets are properly classified under subheading 4602.19.1700, HTSUS, as other baskets of wickerwork, or in subheading 4602.19.1800, HTSUS, as other baskets other than of wickerwork.
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. 2704-2014-101534 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) C89135, dated August 7, 1998, NY C88102, dated July 17, 1998, and NY K82779, dated February 27, 2004.
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 Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
4602 Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:
Of vegetable materials:
***
4602.19 Other:
***
Other baskets and bags, whether or not lined:
***
Other:
4602.19.1700 Wickerwork
4602.19.1800 Other
We begin by noting that this dispute is at the eight-digit level of classification. There is no dispute that the subject storage baskets are described by the terms of heading 4602, HTSUS. At issue here is whether the storage baskets under consideration are classified under subheading 4602.19.1700, HTSUS, as other baskets of wickerwork, or under subheading 4602.19.1800, HTSUS, as other baskets other than of wickerwork.
The term “wickerwork” is not defined in the HTSUS or its relevant chapter or section notes. It is also not defined in the pertinent Explanatory Notes. In such cases, CBP has adhered to the position that the term should be defined in accordance with its common meaning. It is presumed that the common meaning and commercial meaning of the term are the same. The common meaning of the term “wickerwork” has been established with the use of dictionaries and other lexicographic authorities. The Webster’s 1913 Dictionary defines “wickerwork” as “a texture of osiers, twigs, or rods; articles made of such a texture.” The Merriam-Webster Dictionary defines “wickerwork” as “work consisting of interlaced pliant twigs or branches.” The Oxford English Dictionary defines “wickerwork” as “work consisting of wickers; a structure of flexible twigs, osiers, or the like plaited together; basket-work.” Dictionary.com online defines “wickerwork” as “material or products consisting of plaited or woven twigs or osiers; articles made of wicker.” The above definitions indicate that the term “wickerwork” is commonly associated with products made of vegetable twigs and rods, in contrast to strips, filaments, etc. To be in the form of twigs or rods, the material have a generally cylindrical shape.
CBP has consistently held that wickerwork is composed of materials such as rods or twigs, with rounded cross-sections. See NY N232644, dated September 27, 2012 (classifying a basket constructed of twig-like vines in subheading 4602.19.1700, HTSUS); and NY N234156, dated October 11, 2012 (also classifying a basket constructed of twig-like vines in subheading 4602.19.1700, HTSUS); See also NY N025733, dated April 25, 2008 (classifying a container constructed entirely of dried natural vines of the species commonly known as “porcelain vine” in subheading 4602.19.1700, HTSUS). Twigs are slim branches or offshoots of branches of woody plants or trees, while rods are solid, round sticks, wands, or staffs. In its submission, Protestant provided several definitions of the term “rods.” Specifically, in this regard Protestant stated the following:
The term “rod” is commonly defined as “a shoot or stem cut from or growing as part of a woody plant,” “a straight, slender shoot or stem of any woody plant, whether still growing or cut from the plant,” and “a thin straight bar, especially of wood or metal.”
Protestant relies on these definitions for the proposition that the water hyacinth stem is a “straight, slender shoot or stem.” However, Protestant fails to recognize that the water hyacinth is not a “woody plant,” but an aquatic plant with spongy, fibrous stalks.
Water hyacinth falls within the genus Eichhornia. It is an invasive, aquatic species that harvesting attempts to control. Unlike woody plants such as, for example, trees, shrubs or vines, water hyacinth does not have twigs or branches. The stem of the water hyacinth plant is made up of fibrous plant material, and has numerous large and extensive air canals that run the length of the stem. When interwoven, the soft water hyacinth stem does not retain its cylindrical shape, but, rather, crushes and flattens. This is due to the collapse of the air canals when the stem is bent.
Furthermore, we emphasize the fact that water hyacinth is not a “woody plant,” for example, like a tree, shrub, or vine. Note 6 to Chapter 44, HTSUS, states that “any reference to ‘wood’ in a heading of this chapter applies also to bamboo and other materials of a woody nature.” It should be noted that there are no rulings classifying any product consisting of water hyacinth under Chapter 44, HTSUS. Furthermore, it is an exceedingly soft material that has none of the properties of wood. Additionally, were the stems in fact of a woody nature, at their instant diameter, they would not be flexible, and they would not meet the definition of plaiting materials in Note 1 to Chapter 46, HTSUS. Interweaving of such thick pieces of wood would not be possible, and any resulting product would be classifiable in Chapter 44. Interestingly, Protestant does not dispute the fact that the water hyacinth is a plaiting material classifiable under Chapter 46, while their arguments would suggest that the stems are a woody material actually classifiable in Chapter 44.
Based on the foregoing discussion, we find that the subject baskets do not meet the characteristics of wickerwork articles, since they are not made of interlaced “twigs” or “rods,” which are defined as “stems cut from or growing as part of a woody plant.” Instead, they are made of water hyacinth plant stems, which, when interwoven, do not retain their cylindrical shape, but crush and flatten instead. This is consistent with the above-referenced NY N232644, dated September 27, 2012; NY N234156, dated October 11, 2012; and NY N025733, dated April 25, 2008.
CBP has never classified water hyacinth baskets as baskets of wickerwork. In NY M85041, dated August 9, 2006, a set of five nesting baskets made of woven water hyacinth vegetable material was classified under subheading 4602.10.1800, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other baskets and bags, whether or not lined: Other: Other.” In NY B86207, dated July 10, 1997, CBP also classified baskets made of water hyacinth in subheading 4602.10.1800, HTSUS. Similarly, in NY R03744, dated May 15, 2006, a set of three boxes made of water hyacinth leaves, interwoven together over a frame of either wood or whole bamboo cane, was also classified under subheading 4602.10.1800, HTSUS.
In its submission, Protestant argues that classifying the subject storage baskets as articles other than wickerwork would be inconsistent with NY C89135, dated August 7, 1998, and NY C88102, dated July 17, 1998. In those rulings, CBP determined that baskets of wickerwork must be composed of plaiting materials which are in the form of twigs, rods or the like (i.e., pieces having a generally round cross section) and found that certain baskets made from flat, interwoven strips, failed to meet this criterion and were not considered baskets of wickerwork. Protestant argues that the water hyacinth stems constitute rods, stating that “rods are defined by Merriam Webster’s dictionary as ‘a straight, slender stick growing on or cut from a tree or bush,’ ” and that “other common sources define rods as a ‘shoot or stem cut from or growing as part of a woody plant.’ ” Only some of the storage baskets at issue in NY C89135 were classified as wickerwork articles, since they were made of thin rattan rods. As discussed above, water hyacinth stems are neither twigs nor rods. Accordingly, we find that classification of the subject storage baskets as other baskets other than of wickerwork is consistent with NY C89135 and NY C88102.
In its submission, Protestant also argued that the Japanese Silver Grass stems forming the basket at issue in NY K82779, dated February 27, 2004, are essentially the same as the water hyacinth stems that form the subject baskets. Protestant argues that since the Japanese Silver Grass stems which were “in their whole rod form and approximately ¼” in diameter” were considered to be wickerwork, then the water hyacinth stems should also be considered wickerwork. We disagree. In that case, the baskets were made from the solid, cylindrical, rod-type stems of Miscanthus sinensis grass. Specifically, NY K82779, describes the baskets as follows:
The botanical name of the plant used in making this basket is Miscanthus sinensis. Some of the common names of the plant are Japanese silver grass, Chinese silver grass, Maiden grass and Eulalia. The plant is a tall perennial ornamental grass with long vertical stems. Cut lengths of the stems are placed side by side and are held together by the metal frame to make the four sides of the basket. Longer lengths of the stems are bent and used as the rim of the basket. The stems are in whole rod form and approximately ¼" in diameter.
Unlike the water hyacinth baskets at issue here, the baskets at issue in NY K82779 were made of long solid vertical stems which, unlike the stems of water hyacinth, do not crush. Therefore, we find that the classification of water hyacinth baskets at issue as articles other than wickerwork is not inconsistent with NY K82779.
At the meeting, the protestant has further argued that water hyacinth constitutes wickerwork, because of subheading 4602.19.14, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Of palm leaf: Wickerwork.” Protestant claimed that since wickerwork articles may be made of palm leaf, there should be no requirement that such articles must be made of materials such as “rods” or “twigs” of “woody plants.” Upon review, we find that this argument is misguided. First, noting the structure of palm fronds, each has a cylindrical, solid, woody center branch from which the leaves sprout. Branches from which leaves sprout is precisely how Customs has viewed twigs and branches. Such branches would fall squarely into the realm of “twigs” or “rods.”
Goods made from the center branch of a “palm leaf” would clearly be regarded as articles of wickerwork by CBP’s well-established precedent. The protestant’s focus on the word “leaf” is faulty in that it is contrary even to their own arguments about what constitutes wicker, which in no place includes mention of leaves. It is also plainly contrary to CBP’s interpretation of wickerwork and CBP ruling history, which does not include a single ruling which states that leaves constitute wicker. In fact, CBP’s rulings continually make the point that wickerwork is twigs and rods, “as opposed to strips, filaments, and parts of leaves.” It is likely that the word “leaf” was utilized in the HTSUS to describe what is, simply, a natural modification of a tree branch.
Based on the foregoing, we conclude that the subject storage baskets are classified in subheading 4602.19.1800, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Other: Other.” See NY M85041, dated August 9, 2006; NY B86207, dated July 10, 1997; and NY R03744, dated May 15, 2006.
HOLDING:
By application of GRIs 1 and 6, the subject water hyacinth storage baskets are classified in heading 4602, HTSUS, and specifically in subheading 4602.19.1800, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Other: Other.” The 2014 general rate of duty is 4.5% ad valorem.
You are instructed to DENY 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
Trade and Commercial Regulations Division