CLA-2 CO:R:C:F 956472 ALS
Ms. Phyllis L. Cooper
Border Brokerage Co., Inc.
P. O. Box 3549
Blaine, WA 98231
RE: Potted Plants in Various Growing Media
Dear Ms. Cooper:
This is in reference to your letter of March 21, 1994, to
the Regional Commissioner of Customs, New York, NY, and your
letter of May 12, 1994, to this Office. You requested
reconsideration of Headquarters Rulings Letter (HRL) 087574 of
June 12, 1990. Since the currently presented facts regarding the
growing media for live potted plants differ from those presented
in connection with the prior ruling and there is no indication
that the prior ruling was incorrect based on the facts then
available, we are treating your letters as a new request for a
binding ruling rather than a reconsideration request.
FACTS:
The articles under consideration are live potted plants
imported from Canada in growing media of different compositions.
Five samples provided with the request indicate that potted
plants will be imported in one of the following mixtures: (1) 50
percent sawdust/mulch, 45 percent peat, and 5 percent
sand/disintegrated rock; (2) 90 percent peat, 5 percent perlite,
and 5 percent sand/disintegrated rock; (3) 95 percent topsoil and
5 percent sand/disintegrated rock; (4) 85 percent peat, 5 percent
sawdust/mulch, 5 percent perlite and 5 percent sand-disintegrated
rock; and (5) 90 percent topsoil, 5 percent sawdust/mulch, and 5
percent sand/disintegrated rock. The plants in these various
growing media are products of Canada or the United States.
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ISSUE:
Whether plants potted in the enumerated mixtures are
classifiable as live plants with soil attached to the roots?
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
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 headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In considering the classification of the potted plants we
note that they are either grown in the importer's fields in
Surrey, BC, Canada, or are imported from various United States
locations. The Canadian supplier has provided a description of 5
of the mixtures in which these plants are potted and exported to
the U.S. Although the supplier indicates that there might be
other mixtures and that "these mixtures are fair representation
of these various soil mixtures" our ruling will be limited to the
mixtures presented to us for consideration.
In order to determine whether potted plants in the noted
mixtures are classifiable in subheading 0602.9.6090, HTSUSA, as
live plants (including their roots) with soil attached to roots,
it is necessary to determine whether these enumerated mixtures
constitute soil for tariff purposes. In this regard we
considered Customs historical treatment of such mixtures. In HRL
068273, issued February 8, 1982, we referenced the definition of
soil employed in the regulations of the United States Department
of Agriculture in section 330.1000(t), title 7, Code of Federal
Regulations (CFR). 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 the admixture of
organic material and soluble salts." We referenced that
definition of soil in HRL 069035, dated February 10, 1982, HRL
087574, dated November 21, 1990 and HRL 089567, dated September
6, 1991.
We believe that the enumerated mixtures which, among other
things, contain disintegrated rock or sand, meet with that
definition. In this regard we note that, in the Second College
Edition, The American Heritage Dictionary, sand is defined as - 3 -
loose, granular, gritty particles of worn or disintegrated rock.
Accordingly, we have concluded that the enumerated mixtures,
which contain disintegrated rock, in which the potted plants
arrive in the United States are soil for tariff purposes. Thus,
we believe that the plants arriving in the United States in these
mixture should be considered as other live plants with soil
attached to their roots.
HOLDING:
Plants, in mixtures containing sand, such as (1) peat,
sawdust/mulch, and sand, (2) peat, perlite, and sand, (3) topsoil
and sand, (4) peat, sawdust/mulch, perlite, and sand, and (5)
topsoil, sawdust/mulch and sand, are classifiable in subheading
0602.99.6090, HTSUSA, which provides for other live plants
(including their roots), cuttings and slips; mushroom spawn,
other, other, other, with soil attache to roots, other. Potted
plants so classifiable are subject to a general rate of duty of 3
percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division