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HQ 952013


July 22, 1992

CLA-2 CO:R:C:F 952013 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 0106.00.5020

Mr. David Bishop
Earthworm Environmental Services
Box 476, 550 Hall Avenue
Renfrew, Ontario, Canada K7V-4A6

RE: "Vermicomposter:" Worms composting food and garbage into worm castings; GRI 3(b) Set put up for retail sale; Essential character: Worms in 0106, other live animals.

Dear Mr. Bishop:

This is in response to your letters received March 9, 1992 and May 7, 1992 requesting the proper classification of an article, described as a "vermicomposter," under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted a sample with your request for a binding ruling.

FACTS:

The "vermicomposter," which consists of several components, is designed to teach children how earthworms compost food scraps and biodegradable garbage into organic worm castings, or manure. A plastic bin with a plastic top serves as the retail container as well as the compost bin in the vermicomposter. Packed inside the plastic bin will be a bag of live red worms and a plastic bag containing "bedding," which consists of dry, crushed and ground newspaper and some soil. Also included are two plastic air tubes, a softcover book on worm composting entitled "Worms Eat My Garbage," a plastic hand fork, a pair of cotton garden gloves for digging in the compost pile and a brief supplementary manual including set up instructions. It is Customs' understanding that the live worms and the book on worm composting will be exported from the United States to be packed with the other components in Canada. In its entirety, the vermicomposter will then be exported from Canada into the United States.

The inquirer has informed Customs that these articles will be imported in small and medium sizes, and in a family/classroom package including two medium size bins. The small bins measure 20 inches in length, 16 inches in width and 12 inches in height. The medium bins measure 24 inches by 20 inches by 12 inches. Apparently, the value of the worms exceeds the value of any of the other individual components comprising the vermicomposter.

ISSUE:

Whether the components of the vermicomposter form a set for tariff purposes and, if they do not form a set, what are the applicable HTSUSA headings for the individual components.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Considering the language of the headings themselves, as well as the section and chapter notes, the article at issue is not classifiable under a single heading, pursuant to GRI 1. At first glance, heading 9503, providing for other toys, appears to warrant consideration. Although certain educational toys are classifiable within 9503, the vermicomposter is essentially a learning device, the principal use of which is not amusement, but rather educational advancement. The article is not ejusdem generis with the educational toys (e.g, toy chemistry, printing, sewing and knitting sets) classifiable within 9503. See EN (A)(17) to 9503. Thus, we must classify the article elsewhere.

The vermicomposter consists of several components. The booklet is classified in Chapter 49, the plastic bin in Chapter 39, the garden gloves in Chapter 62 and the worms in Chapter 1.

Since the HTSUSA provides for each of these articles in separate headings, classification is determined by applying GRI 3(a) which explains, in pertinent part, that when a good is prima facie, classifiable in two or more headings, it is to be classified in the heading which provides the most specific description of the good in question. However, all headings are regarded as equally specific when each refers to part only of the components in a set put up for retail sale.

In accordance with Explanatory Note X to GRI 3(b), the vermicomposter is a set since: (a) at least two of its components are classifiable in different headings; (b) the article consists of components put up together to carry out a specific activity, in this case, to teach a child how worms compost scraps of food and garbage into worm castings; and (c) the set, which is packaged in a plastic bin, is ready for direct sale without repacking.

Since the vermicomposter is, therefore, a set, and the headings under which the components could be classified refer to only part of the items in the set, we must next turn to GRI 3(b) to classify the entire article. This rule provides that the set is classified by the component which gives the set its essential character. "Essential character" is the attribute which strongly marks or serves to distinguish what an article, or set, is. Explanatory Note VIII to GRI 3(b) provides that essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In this case, the worms impart the essential character. The cost of the worms predominates among the values for the various components. Moreover, the use of the other components all revolve around the use of the worms and their conversion of the garbage into compost.

Focusing on the appropriate heading for the worms, heading 0106 provides for other live animals. The applicable subheading is 0106.00.5020 which provides for worms.

HOLDING:

The vermicomposter is classifiable in subheading 0106.00.5020, as "Other live animals: Other...Worms." The general column one rate of duty provides that the article is duty free.

As such, the eligibility of the live worms and softcover book within the set for preferential duty free treatment in subheading 9801.00.10, as American Goods Returned, will not be considered.

Sincerely,

John Durant, Director
Commercial Rulings Division

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