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