CLA-2 CO:R:C:F 953036 ALS
District Director of Customs
P. O. Box 4688
Portland, ME 04112
RE: Internal Advice Request 69/92 Regarding the Classification of
Black Spruce Seedlings in a Planting Medium of Peat Moss,
Vermiculite and Silica Sand
Dear Mr. Ingalls:
This request for internal advice was initiated by F. H.
Fenderson, Inc., Customs brokers, on behalf of the Scott Paper
Company, and concerns the classification of black spruce seedlings
in a mixture of peat moss, vermiculite and silica sand.
FACTS:
The product under consideration is black spruce seedlings of
Canadian origin growing in a mixture of 30.2 percent peat moss,
18.4 percent vermiculite and 51.4 percent silica sand.
ISSUE:
What is the classification of black spruce seedlings in a
mixture of peat moss, vermiculite and silica sand?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in - 2 -
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.
The seedlings under consideration are grown in Canada and
shipped to Maine for planting in reforestation areas. They are
conifer seedlings grown in containers for a two year period. They
are shipped in containers with a mix of peat moss, vermiculite and
sand.
In considering the headings and subheadings under which the
subject seedlings may be classified, we note the provision for
"[o]ther live plants (including their roots), cuttings and slips;
mushroom spawn: Other: Other:" under subheading 0602.99, HTSUSA.
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 30.2 percent peat moss, 18.4
percent vermiculite and 51.4 percent silica sand.
In this regard we considered Customs historical treatment of
such mixtures. In Headquarters Ruling Letter (HRL) 068273, issued
February 10, 1982, we referenced the definition of soil employed
in the regulations of the United States Department of Agriculture
in section 330.100(t), title 7, Code of Federal Regulations. That
provision specifies that soil is "(t) The loose surface material
of earth in which plants grow, in most cases consisting of
disintegrated rock with an admixture of organic material and
soluble salts." We believe that the instant planting medium meets
that definition. It is an admixture of organic material and
soluble salts with sand. According to the Second College Edition,
The American Heritage Dictionary, sand is loose, granular, gritty
particles of worn or disintegrated rock. Based thereon, we have
concluded that the mixture in which these seedlings arrive in the
United States is soil for tariff purposes.
Since this mixture is attached to seedlings roots as they
enter the United States, we believe it is appropriate to consider
such seedlings as other live plants with soil attached to the
roots.
- 3 -
HOLDING:
Seedlings, in a mixture of peat moss, vermiculite and silica
sand, are classifiable in subheading 0602.99.6010, HTSUSA, as other
live plants, trees and shrubs with soil attached to the roots, and
subject to a general rate of duty of 3 percent ad valorem. The
general rate of duty effective for the period which ends at the
close of December 31, 1993, is 2.3 percent 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 special rate of
duty of 1.5 percent ad valorem, 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