HQ 953613: Modification of Headquarters Ruling Letter (HRL) 950296, dated December 12, 1991, Concerning Gaultheria Procumbens, a Live Plant (Wintergreen) Grown Outside In Plastic Pots Containing a Mixture of Peat, Bark, Sand, Fertilizer and Lime

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 953613

                         March 31, 1993

CLA-2 CO:R:C:F  953613  ALS

CATEGORY:  Classification

TARIFF No.:  0602.99.6090

Mr. Dave Walser
Arthur J. Humphreys Division
Border Brokerage Co., Inc.
P. O. Box 249
Sumas, Washington 98295

RE:  Modification of Headquarters Ruling Letter (HRL) 950296,    
dated December 12, 1991, Concerning Gaultheria Procumbens, a     
Live Plant (Wintergreen) Grown Outside In Plastic Pots      
Containing a Mixture of Peat, Bark, Sand, Fertilizer and    Lime

Dear Mr. Walser:

     In the referenced letter you received a ruling on the
classification of the subject plants.  In that ruling the plants
were classified in subheading 0602.99.90, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), based on the
conclusion that the mixture in which the plants were grown did not
constitute soil for tariff purposes.

     Subsequent to the above letter it was called to our attention
that sand is loose, granular, gritty particles of worn or
disintegrated rock.  Based thereon we have reviewed our  conclusion
in that letter that the mixture in which the plants were grown did
not contain disintegrated rock and, therefore, the mixture was not
"soil" for tariff purposes.  

     We have confirmed that sand is defined as noted.  We have,
therefore, concluded that our prior conclusion was not correct and
that the holding in HRL 950296 should, accordingly, be modified to
reflect that the subject plants are classifiable in subheading
0602.99.6090, HTSUSA.

                              - 2 -

     Pursuant to section 177.9, Customs Regulations (19 CFR 177.9),
HRL 950296 is modified.  

     Live Plants with soil attached to their roots are classifiable
in subheading 0602.99.6090, HTSUSA, 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.

     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 1.5 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