CLA-2 CO:R:C:F 953501 ALS
District Director of Customs
1000 Second Avenue
Suite 2200
Seattle, WA 98104-1049
RE: Request for further Review of Protest 3004-92-100181, dated
November 16, 1992, Concerning Live Potted Plants From Canada
in a Mixture of Peat, Bark, Pumice, Fertilizer and Lime
Dear Mr. Holland:
This ruling is on a protest that was filed against your
decisions of October 16, October 23, and November 6, 1992, in the
liquidation of multiple entries covering the referenced items.
FACTS:
The products under considerations are various live potted
plants of Canadian origin growing in a mixture of peat, bark,
pumice, fertilizer and lime.
ISSUE:
Is the potting mix in which the plants are growing considered
soil for tariff purposes?
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.
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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 plants may be classified, we note that both the importer
and your office agree that they are classifiable in subheading
0602.99, HTSUSA. Classification at the 8 and 10 digit level is,
however, in dispute and is dependent on whether the aforementioned
mixture is considered soil for tariff purposes.
Although classification at the 8 and 10 digit level is also
dependent on whether the plants are herbaceous perennials or other
plants, we do not have sufficient information in file to confirm
the grouping of all the subject plants. There, however, is
apparently no dispute as to that matter. We, therefore, will limit
our discussion herein to the issue presented above.
In this regard we considered Customs historical treatment
mixtures of growing mediums and whether they are soil for tariff
purposes. 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 continued to follow that definition in
HRL 087574, dated November 21, 1990, HRL 089537, dated September
6, 1991, and HRL 953613, dated March 31, 1993, which modified HRL
950296, dated December 12, 1991.
We have also noted the definition of soil 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.
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In considering whether these various growing media
combinations constitute soil for tariff purposes, we have tended
to interpret the term soil liberally. This follows the advice
received from the chief U.S. agricultural negotiator at the Tokyo
Round of the Multilateral Trade Negotiations who indicated that
the concessions to Canada were to be "...as broad as allowable
under Animal and Plant Health Inspection Service (APHIS) plant
quarantine regulations for Canada..." We, therefore, have
considered mixtures which meet the aforementioned APHIS
definition, i.e., they are an admixture of organic material and
soluble salts along with disintegrated rock, to meet soil for
tariff purposes.
Since pumice is a volcanic rock (The World Book Encyclopedia
(1973) and is, according to information supplied by the Canadian
supplier, "in various sizes and conditions of disintegration", we
believe that the instant mixture meets the requirements of the
APHIS definition and is soil for tariff purposes.
HOLDING:
Live herbaceous perennials, other than orchid plants and
chrysanthemums, with soil attached are classifiable in subheading
0602.99.3010-3090, HTSUSA, as living plants with soil attached to
the roots. Other live plants with soil attached are classifiable
in subheading 0602.99.6010-6090, HTSUSA, depending on whether they
are trees and shrubs, poinsettias or other live plants. The
general rate of duty for live plants with soil attached to their
roots which are classifiable in subheading 0602.99.30, HTSUSA, is
2.2 percent ad valorem and 3 percent ad valorem for those live
plants with soil attached to their roots which are classifiable in
subheading 0602.99.60, HTSUSA.
The above live plants with soil attached to their roots, the
product of Canada, are, in accordance with General Note
3(c)(vii)(B), HTSUSA, eligible for a special rate of duty of 1.1
percent or 1.5 percent ad valorem, 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.).
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Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed you are instructed
to allow the protest in full. A copy of this decision should be
attached to the Customs Form 19 and provided to the protestant as
part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division