CLA-2 CO:R:C:F 089537 ALS

Mr. Chris B. Rounding, C.A.
Pelton Reforestation Ltd.
12930 203rd Street
Maple Ridge, British Columbia
Canada V3Z 1A1

RE: Forest Tree Seedlings in a Mixture of Nutrients, Fertilizers, Limestone, Phosphates, Crushed Rock, Sawdust and Peat Moss Contained in a Polystyrene Block

Dear Mr. Rounding:

This is in reply to your letter of May 8, 1991, to our New York office, concerning the classification of seedlings under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples of the subject articles with the growing medium attached and with the growing medium removed were provided.

FACTS:

The articles at issue are forest tree seedlings from Canada which are primarily used for reforestation. They include but are not limited to pines, firs and spruces. The seedlings are sown as seeds into polystyrene blocks by mechanical seeders. Each block is filled with a mixture of micro nutrients, slow release fertilizers, crushed limestone, crushed phosphates, sterilized crushed rock sawdust and peat moss. Each of the species requires a different level of each component. The peat moss never exceeds 70 per cent of the component content. This mixture remains attached to the roots at the time of importation.

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ISSUE:

Is the medium in which the seedlings are grown considered soil for tariff purposes and is it attached to the seedlings at the time of importation?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the headings and subheadings under which the subject articles may be classified, we note, as you suggested, it is clear that the classification under the provision for other live plants (including their roots), cuttings and slips; mushroom spawn: Other: Other: under subheading 0602.99, HTSUSA, is appropriate. After noting that the Import Specialist Team at Blaine, Washington, informally advised you that the seedlings would be classified under subheading 0602.99.90, HTSUSA, as other trees and shrubs, you suggested that classification under subheading 0602.99.60, HTSUSA, as other trees and shrubs with soil attached to roots, would be appropriate. We agree with your conclusion regarding the classification of the seedlings.

In order to determine which of the alternative subheadings is appropriate, it is necessary to ascertain whether the growing medium in which the seedlings arrive in the United States is soil for tariff purposes and whether it is attached to the roots of the seedlings. The mixture is composed of micro nutrients, slow release fertilizers, crushed limestone, crushed phosphates, sterilized crushed rock, sawdust and peat moss in varying quantities, depending on the type of seedling. Peat moss never exceeds 70 per cent of the mixture content.

You stated that the mixture fits the definitions of soil commonly used by the United States Department of Agriculture and Agriculture Canada, an independent soil analysis laboratory as well as a dictionary definition of that term. We have considered that information. We also considered Customs historical treatment of such mixtures. In a Customs Headquarters ruling of - 3 -

February 10, 1982, (file 068273), we referenced the definition of soil employed by the United States Department of Agriculture. We therein noted that soil was defined as "The loose surface material in which plants grow, in most cases consisting of disintegrated rock with an admixture of organic material and soluble salts." Based thereon, we agree that the mixture in which the seedlings arrive in the United States is soil for tariff purposes.

This leaves the question as to whether this soil is attached to the roots of the seedlings at the time of their importation. In comparing the pictures and samples of the seedlings with the soil attached, which you intend to import, with the pictures and sample of the seedlings with the soil removed, which you submitted for comparative purposes, we agree that the articles to be imported qualify as seedlings with the soil attached to the roots.

HOLDING:

Seedlings with soil attached are classifiable under subheading 0602.99.60, HTSUSA, as living plants with soil attached to the roots, and dutiable at a general rate of duty of 3 per cent ad valorem. The general rate of duty effective for the period which ends at the close of December 31, 1992, is 1.7 per cent ad valorem in accordance with subheading 9903.10.02, HTSUSA.

Seedlings, the product of Canada, are, in accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a free rate of duty, upon compliance with the provisions of the United States - Canada Free Trade Agreement (FTA) and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).

Sincerely,

John Durant, Director
Commercial Rulings Division