CLA-2 CO:R:C:F 950256 ALS
Category: Classification
Mr. Dave Walser
Arthur J. Humphreys Division
Border Brokerage Co., Inc.
P. O. Box 249
Sumas, Washington 98295
RE: Gaultheria Procumbens, a Live Plant (Wintergree) Grown
Outside In Plastic Pots (Wintergreen) Containing a Mixture
of Peat, Bark, Sand, Fertilizer and Lime
Dear Mr. Walser:
This is in response to your letter of August 13, 1991, to
our Blaine, Washington Office requesting a binding ruling for the
subject wintergreen plant. Your request was referred to our New
York Seaport Office which, in turn, referred it to this office.
FACTS:
The article under consideration is a live wintergreen plant
(Gaultheria Procumbens) which is grown outside in plastic pots
containing a mixture of peat, bark, sand, fertilizer and lime.
You indicate that you believe the article should be classified
under subheading 0602.99.6090, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), as a live plant with soil
attached to the roots.
ISSUE:
Are the evergreens potted in a mixture of peat, bark, sand,
fertilizer and lime, a plant with soil attached to the roots?
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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 heading and subheadings under which the
subject article may be classified, we note two possibilities that
appear to be appropriate. Subheading 0602.99.60, HTSUSA, would
appear to be appropriate if the mixture in which the evergreens
are potted is considered soil. If the mixture is not considered
soil, the article would be classified under subheading
0602.99.90, HTSUSA.
We have previously considered whether various mixtures used
as a growing medium are soil for tariff purposes. In
Headquarters Ruling Letter (HRL) 068273, dated February 8, 1982,
HRL 069035, dated February 10, 1982, HRL 087574, dated November
21, 1990, and HRL 089537, dated September 6, 1991, we referred to
the regulations of the Department of Agriculture in reaching a
conclusion of the matter. Section 330.100, Federal Plant Pest
Regulations (7 CFR 300.100), defines soil as:
The loose surface material of the earth in which plants
grow, in most cases consisting of disintegrated rock with an
admixture of organic material and soluble salts.
This definition is similar to the one contained in the
McGraw-Hill Encyclopedia of Science and Technology (6th edition,
1987, page 507). Soil is defined therein as:
Fine divided rock-derived material containing an admixture
of organic material and capable of supporting vegetation
In the previous rulings, we concluded that the key
ingredient determinative as to whether each mixture was soil, was
the presence of disintegrated rock. We, therefore, considered
the nature of the ingredients of the current mixture to see if it
met this requirement. Peat, in accordance with section 330.210a
of the referenced regulations, is considered a packing material.
The bark, which is clearly not disintegrated rock, is presumed to
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be in the nature of compost or humus and is utilized as a
fertilizer to provide nutrients for the plants and/or to increase
the water retention ability of the mixture. The remaining items
of the mixture: sand, 3 different types of fertilizers and 2
different types of lime, which provide nutrients to the mixture,
are considered non-soil items by Agriculture. As noted in
Circular Q-330.300-1, Soil (11-91) of the Plant Protection and
Quarantine branch of the Animal and Plant Health Inspection
Service, these items are grouped as non-soil items and outside
the scope of the referenced regulations.
Based on the above, we have concluded the instant mixture
does not contain disintegrated rock and is not "soil" for tariff
purposes.
HOLDING:
The subject article does not have soil attached to its roots
and is, therefore, classifiable under subheading 0602.99.90,
HTSUSA, as Other Live Plants (including their roots), cuttings
and slips; Other: Other: Other, subject to a general rate of duty
of 7.5 per cent ad valorem.
Such plants, which are the product of Canada, are, in
accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a
reduced rate of duty, upon compliance with the provisions of the
United States - Canada Free Trade Agreement (CFTA) and section
10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).
Sincerely,
John Durant, Director
Commercial Rulings Division