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HQ 953501

June 4, 1993

CLA-2 CO:R:C:F 953501 ALS


TARIFF NO.: 0602.99.30 0602.99.60

District Director of Customs
1000 Second Avenue
Suite 2200
Seattle, WA 98104-1049

RE: Request for further Review of Protest 3004-92-100181, dated November 16, 1992, Concerning Live Potted Plants From Canada in a Mixture of Peat, Bark, Pumice, Fertilizer and Lime

Dear Mr. Holland:

This ruling is on a protest that was filed against your decisions of October 16, October 23, and November 6, 1992, in the liquidation of multiple entries covering the referenced items.


The products under considerations are various live potted plants of Canadian origin growing in a mixture of peat, bark, pumice, fertilizer and lime.


Is the potting mix in which the plants are growing considered soil for tariff purposes?


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 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 plants may be classified, we note that both the importer and your office agree that they are classifiable in subheading 0602.99, HTSUSA. Classification at the 8 and 10 digit level is, however, in dispute and is dependent on whether the aforementioned mixture is considered soil for tariff purposes.

Although classification at the 8 and 10 digit level is also dependent on whether the plants are herbaceous perennials or other plants, we do not have sufficient information in file to confirm the grouping of all the subject plants. There, however, is apparently no dispute as to that matter. We, therefore, will limit our discussion herein to the issue presented above.

In this regard we considered Customs historical treatment mixtures of growing mediums and whether they are soil for tariff purposes. 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 continued to follow that definition in HRL 087574, dated November 21, 1990, HRL 089537, dated September 6, 1991, and HRL 953613, dated March 31, 1993, which modified HRL 950296, dated December 12, 1991.

We have also noted the definition of soil 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 considering whether these various growing media combinations constitute soil for tariff purposes, we have tended to interpret the term soil liberally. This follows the advice received from the chief U.S. agricultural negotiator at the Tokyo Round of the Multilateral Trade Negotiations who indicated that the concessions to Canada were to be "...as broad as allowable under Animal and Plant Health Inspection Service (APHIS) plant quarantine regulations for Canada..." We, therefore, have considered mixtures which meet the aforementioned APHIS definition, i.e., they are an admixture of organic material and soluble salts along with disintegrated rock, to meet soil for tariff purposes.

Since pumice is a volcanic rock (The World Book Encyclopedia (1973) and is, according to information supplied by the Canadian supplier, "in various sizes and conditions of disintegration", we believe that the instant mixture meets the requirements of the APHIS definition and is soil for tariff purposes.


Live herbaceous perennials, other than orchid plants and chrysanthemums, with soil attached are classifiable in subheading 0602.99.3010-3090, HTSUSA, as living plants with soil attached to the roots. Other live plants with soil attached are classifiable in subheading 0602.99.6010-6090, HTSUSA, depending on whether they are trees and shrubs, poinsettias or other live plants. The general rate of duty for live plants with soil attached to their roots which are classifiable in subheading 0602.99.30, HTSUSA, is 2.2 percent ad valorem and 3 percent ad valorem for those live plants with soil attached to their roots which are classifiable in subheading 0602.99.60, HTSUSA.

The above live plants with soil attached to their roots, the product of Canada, are, in accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a special rate of duty of 1.1 percent or 1.5 percent ad valorem, 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.).

Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division

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