CLA-2 OT:RR:CTF:CPM H279097 APP
Port Director
Port of Buffalo
U.S. Customs and Border Protection
726 Exchange Street, Suite 400
Buffalo, NY 14210
Attn: Sharon Swiatek, Protest Review Officer
RE: Protest and Application for Further Review No. 0901-16-100029; Tariff classification of dried or bleached botanicals that were also dyed, painted, lacquered, or glittered
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 0901-16-100029, timely filed on February 23, 2016, on behalf of Second Nature Designs Ltd. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of dried or bleached botanicals that were also dyed, painted, lacquered, or glittered.
FACTS:
From July 9, 2015 to August 25, 2015, protestant filed 13 entries of dried or bleached botanicals, such as branches and pine cones, which were subsequently dyed, laquered, painted, or decorated with glitter, and then dried again in an oven under subheading 0604.90.30, HTSUS, which provides for “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: Other: Other: Dried or bleached.” (emphasis added). From August 28, 2015 to September 25, 2015, CBP liquidated the botanical goods under subheading 0604.90.60, HTSUS, which provides for “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: Other: Other: Other.” (emphasis added).
In its AFR application, protestant describes the merchandise as follows:
The merchandise in question consists of certain natural branches, flowers, wood, and similar merchandise which is dried and decorated. Second Nature sources these materials from NAFTA countries (the United States and Canada) and from non-NAFTA countries, primarily India and Thailand. When received at Second Nature’s plant in Canada, these botanicals have already been dried and therefore preserved. Once at Second Nature’s facility in Canada, these products undergo additional processes to adorn or gloss the products. For example, the dried items may be dyed to give them a particular color, then be lacquered for a glossier appearance. Glitter may be applied, or glitter might be applied, or the product might be painted a different color. After the merchandise is further altered or decorated, it is placed in ovens to be dried yet again. Representative examples of the subject merchandise are shown below in Figures 1 through 4.
The representative examples shown in Figures 1 through 4 include: “Blossom Branch Color Shown: Orange,” “Pine Cone Jumbo 6-8” Color Shown: Gold Glitter,” “Lata Star Small Color Shown: Gold Glitter,” and “Milo Berries Color Shown: Burgundy.”
ISSUE:
Whether the subject foliage, branches, and other parts of plants, which are bleached or dried upon importation into Canada, and subsequently dyed, lacquered, painted, or glittered, are properly classified as solely bleached or dried in subheading 0604.90.30, HTSUS, or as having undergone additional processes beyond bleaching or drying in subheading 0604.90.60, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed on February 23, 2016, within 180 days of liquidation of the 13 entries. See 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 Number 0901-16-100029 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee or by the courts.
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”). GRI 1 requires that classification be determined first according to the terms of the heading 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.
GRI 6 states, in pertinent part that:
[T]he classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purpose of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The HTSUS (2015) subheadings under consideration are as follows:
0604 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:
0604.20.00 Fresh
. . .
0604.90 Other:
0604.90.10 00 Mosses and lichens
Other:
0604.90.30 Dried or bleached
0604.90.60 Other
Note 2 to Chapter 6, HTSUS, states, in relevant part, that, “Any reference in heading 0603 or 0604 to goods of any kind shall be construed as including a reference to bouquets, floral baskets, wreaths and similar articles made wholly or partly of goods of that kind, account not being taken of accessories of other materials.”
At GRI 1, there is no dispute that the subject botanicals are classified in heading 0604, HTSUS because this heading provides eo nomine for foliage, branches and other parts of plants suitable for ornamental purposes that have been dried, dyed, breached, impregnated or otherwise prepared. Rather, the issue is the proper classification at the subheading level. As a result, GRI 6 applies.
Protestant argues that subject botanicals should be classified under subheading 0604.90.30, HTSUS. According to protestant, the performing of additional decorative operations to botanicals, which have been dried or bleached, does not remove them from classification in subheading 0604.90.30, HTSUS. Protestant argues that this subheading is an eo nomine provision and covers all forms of dried or bleached botanicals in the absence of contrary legislative intent and as long as the identity of the named article has not been destroyed and it has not been converted into something else. Protestant states that the layer of paint, laccquer, glitter, or other adornment does not transform the merchandise into something other than dried or bleached foliage to necessitate classification under a less specific basket provision. According to protestant, the botanicals are specifically provided for under subheading 0604.90.30, HTSUS, as dried or bleached goods, which renders classification under the residual provision in subheading 0604.90.60, HTSUS “unacceptable and prohibited.” Protestant argues that classification under a basket provision is proper only if the merchandise is not included elsewhere in the HTSUS. Protestant claims that subheading 0604.90.60, HTSUS was created for botanicals that have undergone a process or application other than being dried or bleached and that the goods were in fact dried or bleached before and after being adorned with glitter, paint, or lacquer.
Whether dried, bleached or further processed, the instant foliage and branches remain ornamental foliage and branches, and are not transformed into a different article. Since the botanicals are no longer fresh, they are precluded from classification as fresh foliage and branches of subheading 0604.20.00, HTSUS. The plain language of subheadings 0604.90.30 and 0604.90.60 makes it clear that foliage that is solely dried or bleached is covered by subheading 0604.90.30, HTSUS. Botanicals that are not fresh and have been dyed, impregnated, or otherwise prepared beyond the basic process of drying or bleaching fall under the residual provision under subheading 0604.90.60, HTSUS. Since subheading 0604.90.30, HTSUS is an eo nomine provision with limitation, it includes only dried or bleached botanicals that have not been subject to additional processes. Subheading 0604.90.60, HTSUS is a basket provision and covers botanicals that have undergone any of the additional processes beyond drying or bleaching that are enumerated in heading 0604, HTSUS. Protestant cites to court cases, see supra, in support of its argument that an eo nomine designation prevails over a basket provision. But here, the named article is dried or bleached. Protestant’s article is dyed and glittered as well, so it is not actually named by the provision protestant proffers for classification.
CBP’s longterm position has been that “advancement beyond mere drying or bleaching moves the product into the residual (“other”) tariff provision” in subheading 0604.99.60, HTSUS (subheading 0604.90.60 since 2012). New York Ruling Letter (“NY”) N135397, dated Dec. 21, 2010. In Headquarters Ruling Letter (“HQ”) 951403, dated Oct. 27, 1992, CBP classified pine cone pics that were lacquered in addition to being dried in subheading 0604.99.60, HTSUS (subheading 0604.90.60, HTSUS since 2012). CBP clarified in HQ 951403 that “[w]hile subheading 0604.99.30 [subheading 0604.90.30, HTSUS since 2012] covers merchandise which undergoes the basic process described therein, that is, drying or bleaching, 0604.99.60 covers merchandise that undergoes other processes [beyond drying or bleaching], some of which are enumerated in heading 0604.”
CBP has consistently classified dried or bleached botanicals that had undergone processes in addition to drying or bleaching under subheading 0604.99.60, HTSUS and its successor subheading 0604.90.60, HTSUS. See NY N266642, dated Aug. 11, 2015 (dried and dyed grass heads that were part of a wreath were classified in subheading 0604.90.60, HTSUS); NY N090796, dated Jan. 28, 2010 (burs of cocklebur and sweetgum that were blanched and dried and then dyed and dried again were classified in subheading 0604.99.60, HTSUS while star anise fruits cleaned with water and then dried were classified in subheading 0604.99.30, HTSUS); NY N069319, dated Aug. 20, 2009 (dried or bleached pears and pomegranites that were painted and pine cones that were lacquered were classified in subheading 0604.99.60, HTSUS); NY N031963, dated July 11, 2008 (dried and dyed wheat grass was classified in subheading 0604.99.60, HTSUS); NY M80897 dated Mar. 10, 2006 (dried and painted wooden branches of paperbush plant were classified in subheading 0604.99.60, HTSUS); NY L87803, dated Oct. 5, 2005 (bundle of brown, shiny reeds dyed a darker color was classified in subheading 0604.99.60, HTSUS and dried or bleached hollow, green stems were classified in subheading 0604.99.30, HTSUS); NY L80878, dated Dec. 13, 2004 (dried and dyed filbert branches were classified in subheading 0604.99.60, HTSUS); NY J87244, dated Sept. 9, 2003 (dried and varnished natural seed pods and berries were classified in subheading 0604.99.60, HTSUS); HQ 962979, dated Nov. 3, 2000 (dried natural pine cones used for ornamental purposes that were painted, lacquered, and decorated with glittered were classified in subheading 0604.99.60, HTSUS); NY 815279, dated Oct. 12, 1995 (dried acanthus leaves dipped in bronze were classified in subheading 0604.99.60, HTSUS); NY 886544, dated June 9, 1993 (dyed and dried or bleached eucalyptus foliage was classified in subheading 0604.99.60, HTSUS). Similarly, the instant botanical goods were dyed, painted, lacquered, or decorated with glitter, in addition to being dried or bleached, and fall within the terms of subheading 0604.90.60, HTSUS.
Based on the above, the instant botanicals are classifiable in subheading 0604.90.60, HTSUS, as articles that have undergone other processes beyond drying or bleaching.
HOLDING:
By application of GRIs 1 and 6, the subject dried or bleached botanicals that were also dyed, lacquered, or decorated with glitter are classified under heading 0604, HTSUS (2015), specifically in subheading 0604.90.60, HTSUS (2015). The column one, general rate of duty is 7%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
Since the reclassification of the merchandise as indicated above is the same as the liquidated rate, you are instructed to DENY the protest IN FULL. 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, through its counsel, no later than sixty (60) days from the date of this letter. Any reliquidation of the entry, in accordance with the decision, must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of Trade, Regulations and Rulings will make this letter available to CBP personnel, and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division