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HQ 088567


July 8, 1991

CLA-2 CO:R:C:F RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 3002.90.5050

Mr. David R. Turrie
International Bio-Tech Canada Ltd.
Unit 9-Ste. 123
13694-104th Avenue
Surrey, B.C. Canada V3T 1W4

RE: Cultures of micro-organisms

Dear Mr. Turrie:

This ruling letter is in response to your request of September 30, 1990, concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a product imported for use as a soil conditioner and odor controller for pet litter.

FACTS:

The product is said to be an organic solution that is manufactured from non-harmful, naturally occurring microbial organisms found in soil and water. It is said to contain a mixture of enzymes, coenzymes, amino acids, proteins, trace minerals, biologically secured nutrients, and water. Included in the mixture are small amounts of nitrogen, phosphorus and potassium.

Laboratory results submitted by the importer are said to show the following: When applied to soil, microbes present in the solution encourage the growth of molds and yeasts that are instrumental in the initial breakdown of larger organic particles in the soil. These broken-down organic particles serve as food and nutrients to bacteria beneficial to plant growth. Moreover, these same microbes act to inhibit pathogens in the soil. Finally, the microbes produce a alkalizing effect in soil that stabilizes odor-causing substances.

Two samples of the product were submitted for laboratory analysis. Analysis of the first sample submitted reveals no presence of microorganisms. On the other hand, analysis of the second sample reveals the presence of viable microorganisms. This classification ruling shall be issued on the assumption that this second sample accurately represents the importer's product.

The product is said to be imported in bottles and sold, marketed, and distributed for use as a soil conditioner and for use as an odor-controlling solution in pet litter.

ISSUE:

What is the proper tariff classification under the HTSUSA of a solution that because of microbes present therein (1) encourages when applied to soil the growth of molds and yeasts beneficial to plant growth while acting to inhibit pathogens and (2) when applied to pet litter stabilizes odor-causing substances in the pet litter?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs.

GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same 4-digit heading under the subheading that most specifically describes or identifies the merchandise.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.

A review of the schedule reveals that two headings merit consideration in the instant classification analysis: 3105 and 3002. Heading 3105 provides for, among other things, "mineral or chemical fertilizers containing two or three of the fertilizing elements nitrogen, phosphorus and potassium" and "other fertilizers." Guidance concerning what constitutes "other fertilizers" for purposes of classification under heading 3105 can be found in chapter note 6 to chapter 31:

For the purposes of heading 3105, the term "other fertilizers" applies only to products of a kind used as fertilizers and containing, as an essential constituent, at least one of the fertilizing elements nitrogen, phosphorus or potassium.

See Chapter Note 6 to Chapter 31 of the HTSUSA.

Although the instant product contains the fertilizing elements nitrogen, phosphorus and potassium, these elements are present in small amounts and do not constitute significant or essential constituents of the product. The product is used in both soil and in pet litter because of the qualities of the above-discussed microbes. Therefore, the product is not used as nor does it function as a fertilizer (i.e., it is not used to replenish chemical elements or to add nutrient elements to soil or to pet litter). See Van Nostrand Reinhold Encyclopedia of Chemistry 375-6 (4th ed. 1984) ("Major reasons for adding fertilizer to soils and plants include...replenishment of chemical elements...[,]...adding nutrients...[,]...and...customizing the nutrient content of soils...."). Hence, the product is not properly classified under heading 3105 as a fertilizer.

The second heading that merits consideration in the instant classification analysis is heading 3002. This heading provides for, among other things, "cultures of micro-organisms (excluding yeasts)." Guidance concerning what constitutes "cultures of micro-organisms (excluding yeasts)" for purposes of classification under heading 3002 can be found in the Explanatory Notes to this heading: "Cultures of micro-organisms (excluding yeasts)...include...cultures of micro-organisms for technical purposes (e.g., for aiding plant growth)." See Explanatory Notes to Heading 3002 to the Harmonized Commodity Description and Coding System at page 435. As imported, the product consists of cultures of micro-organisms for technical purposes (i.e., to aid plant growth and to control odors in pet litter). In light of the above, this product is provided for by the terms of heading 3002. Thus, it is properly classified under this heading.

HOLDING:

The above-described product is properly classified under subheading 3002.90.50, HTSUSA, which provides for, among other things, cultures of micro-organisms (excluding yeasts), other, other. Goods classified under this subheading may be entered free of duty.

Sincerely,

John Durant, Director
Commercial Rulings Division

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