HQ 0953036 - Internal Advice Request 69/92 Regarding the Classification of Black Spruce Seedlings in a Planting Medium of Peat Moss, Vermiculite and Silica Sand - United States International Trade Commision Rulings

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HQ 953036

March 29, 1993

CLA-2 CO:R:C:F 953036 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 0602.99.6010

District Director of Customs
P. O. Box 4688
Portland, ME 04112

RE: Internal Advice Request 69/92 Regarding the Classification of Black Spruce Seedlings in a Planting Medium of Peat Moss, Vermiculite and Silica Sand

Dear Mr. Ingalls:

This request for internal advice was initiated by F. H. Fenderson, Inc., Customs brokers, on behalf of the Scott Paper Company, and concerns the classification of black spruce seedlings in a mixture of peat moss, vermiculite and silica sand.

FACTS:

The product under consideration is black spruce seedlings of Canadian origin growing in a mixture of 30.2 percent peat moss, 18.4 percent vermiculite and 51.4 percent silica sand.

ISSUE:

What is the classification of black spruce seedlings in a mixture of peat moss, vermiculite and silica sand?

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 - 2 -
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.

The seedlings under consideration are grown in Canada and shipped to Maine for planting in reforestation areas. They are conifer seedlings grown in containers for a two year period. They are shipped in containers with a mix of peat moss, vermiculite and sand.

In considering the headings and subheadings under which the subject seedlings may be classified, we note the provision for "[o]ther live plants (including their roots), cuttings and slips; mushroom spawn: Other: Other:" under subheading 0602.99, HTSUSA. In order to determine which of the alternative subheadings is appropriate, it is necessary to ascertain whether the growing medium in which the seedlings arrive in the United States is soil for tariff purposes and whether it is attached to the roots of the seedlings. The mixture is composed of 30.2 percent peat moss, 18.4 percent vermiculite and 51.4 percent silica sand.

In this regard we considered Customs historical treatment of such mixtures. 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 believe that the instant planting medium meets that definition. It is an admixture of organic material and soluble salts with sand. According to the Second College Edition, The American Heritage Dictionary, sand is loose, granular, gritty particles of worn or disintegrated rock. Based thereon, we have concluded that the mixture in which these seedlings arrive in the United States is soil for tariff purposes.

Since this mixture is attached to seedlings roots as they enter the United States, we believe it is appropriate to consider such seedlings as other live plants with soil attached to the roots.

HOLDING:

Seedlings, in a mixture of peat moss, vermiculite and silica sand, are classifiable in subheading 0602.99.6010, HTSUSA, as other live plants, trees and shrubs with soil attached to the roots, and subject to a general rate of duty of 3 percent ad valorem. The general rate of duty effective for the period which ends at the close of December 31, 1993, is 2.3 percent ad valorem in accordance with subheading 9903.10.02, HTSUSA.

Seedlings, the product of Canada, are, in accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a special rate of duty of 1.5 percent ad valorem, upon compliance with the provisions of the United States - Canada Free Trade Agreement (FTA) 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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