Second Nature Asks Trade Court for Summary Determination in Botanicals Classification Case
The Court of International Trade should rule in favor of importer Second Nature in its case challenging CBP classification of its imported dried botanicals, the importer said in a June 14 brief (Second Nature Designs Ltd. v. United States, CIT #17-00271). The importer asked the court for a summary judgment classifying all subject merchandise under subheading 0604.90.30 as dried or bleached, regardless of a subsequent dying and painting process, and reliquidating the entries duty-free.
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Second Nature imported the botanicals at issue between 2015 and 2016. CBP classified some of the botanicals under subheading 0604.90.60 as, "other," non-fresh foliage, branches and other parts of plants, without flowers or flower buds ... suitable for bouquets or for ornamental purposes, dutiable at 7%. Second Nature filed a protest, asking CBP to reclassify the merchandise under subheading 0604.90.30 as dried or bleached foliage, which would be duty-free. The protests were denied by CBP between March and October 2017.
Second Nature argues that its items are “dried or bleached" and better described there than under an "other" basket provision and that decorative operations like dyeing and painting do not cause the products to be "something other than 'dried or bleached.' ... Additional processing performed to an article will not remove it from the scope of a tariff heading which describes it," the importer said.
Second Nature said that articles named within specific provisions include articles that have been further processed, even with methods not identified in the tariff provision, "so long as their identity ... has not been destroyed and they have not been converted into something else," so coloring the items previously dried does not prevent them from classification as "dried or bleached" foliage because the paint and lacquer additions to not rehydrate the product.
Also, the items are more specifically described as "dried or bleached" than as "other" foliage because 0604.90.60 is a basket provision, Second Nature said. Classification under a residual provision is only correct when the merchandise is not specified or included elsewhere in the tariff schedule, it said. Since there are only two categories of "Foliage ...: other: other" in the tariff schedule ("dried or bleached" and "other"), Second Nature says that the "other" classification is specifically opposed to dried or bleached foliage.
The parties are also awaiting a ruling from Judge Katzmann on DOJ's counterclaim seeking reclassification and additional duties (see 2203230024). Second Nature argues that some of its products are specifically described by 0604.90.30 in opposition to the government's proposed classifications in its counterclaim. Birch slices are "exactly described" by heading 0604 as "branches and other parts of plants," instead of the proposed classification under heading 4420 as wood marquetry and inlaid wood. Colored calamus plants shaped into decorative curls are still "dried" foliage instead of the government's proposed classification under heading 4602 as "basketwork," despite their decorative aspects, Second Nature said.