Appealed from: U.S. Court of International Trade. Judge Carman
Before Plager and Schall, Circuit Judges, and Pratt,*fn* Senior Circuit Judge.
Rico Import Company appeals a decision*fn1 of the Court of International Trade affirming a classification of goods under the Harmonized Tariff Schedule of the United States by the Customs Service. We reverse the decision of the Court of International Trade.
Background and Procedural History
Rico Import Company (Rico) imports tubes from France into the United States for the production of the "reed" used in clarinets and saxophones. Rico produces these tubes from the "giant reed," Arundo donax, which grows to a length of 18-24 feet. The reeds are harvested during the winter, when the plant is dormant. In their state as harvested, the reeds are dried for four to six months. While drying, the reeds are kept well ventilated but out of direct sunlight. After the first drying process, the leaves, stems, and husks are removed from the poles. The bare poles are then cut into 6-8 foot lengths. The poles are further cured in the sun for up to two weeks. The cured poles are cut again, removing the nodes that divide the plant's stem into sections. The resulting tubes are sorted into two sizes: one less than 24 mm in diameter and the other from 24 to 27 mm in diameter. The tubes are sorted by wall thickness as well as by diameter. In this condition, the tubes are imported to make "reeds" for musical instruments. The smaller tubes are used for clarinets, the larger ones for saxophones.
Arundo donax may also be plaited and used to make cane furniture, in conjunction with chain link fencing to make opaque barriers, to make light and disposable roofs for construction sites, and so forth. The Arundo donax tubes reported by Rico are not suitable for plaiting, and are used solely for the production of reeds for musical instruments.
The Customs Service (Customs) originally maintained that Rico's tubes were properly classified under subheading 4602.10.50 of the Harmonized Tariff Schedule of the U.S. (1990) (HTSUS).*fn2 A tariff of 3.0% ad valorem is applied to goods entering the United States covered by subheading 4602.10.50, HTSUS. Before the Court of International Trade (CIT), Rico protested the classification of its goods under subheading 4602.10.50, HTSUS, and argued that subheading 1404.90.00, HTSUS should have been applied to its tubes instead. Customs countered that Arundo donax was specifically covered by subheading 1401.90.40, HTSUS. The CIT found that Customs had abandoned its original contention that the tubes were dutiable under 4602.10.50, HTSUS. Rico Import Co. v. United States, 797 F. Supp. 1028, 1029 (CIT 1992).
In pertinent part, the Harmonized Tariff Schedule provides:
VEGETABLE PLAITING MATERIALS; VEGETABLE PRODUCTS
NOT ELSEWHERE SPECIFIED OR INCLUDED
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