HQ 0950296 - Gaultheria Procumbens, a Live Plant (Wintergree) Grown Outside In Plastic Pots (Wintergreen) Containing a Mixture of Peat, Bark, Sand, Fertilizer and Lime - United States International Trade Commision Rulings

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HQ 950296

December 12, 1991

CLA-2 CO:R:C:F 950256 ALS

Category: CLASSIFICATION

TARIFF NO.: 0602.99.90

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?

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
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

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