HQ 952013: "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.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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.


                               -2-

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.






                               -3-

     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