CLA-2 RR:CR:GC 960622 ptl
Port Director
U.S. Customs Service
1901 Cross Beam Drive
Charlotte, NC 28217
RE: Protest 1512-97-100162; "New Serrico" Cigarette Beetle
Trap; NY 880892.
Dear Port Director:
The following is our decision regarding Protest 1512-97-100162 concerning your classification under the Harmonized Tariff
Schedule of the United States, (HTSUS) of articles identified as
"New Serrico" Cigarette Beetle Traps.
The entry covering the merchandise was liquidated on April
25, 1997, under the provision for insecticides in subheading
3808.10.5000, HTSUS. A timely protest under 19 U.S.C. 1514 was
received on May 9, 1997. The protestant requested reliquidation
of the entry under the provision for cartons, boxes, cases, of
corrugated paper or paperboard in subheading 4819.20.0040, HTSUS.
FACTS:
The merchandise is an unassembled beetle trap. The
components of the trap are pieces of cardboard which have been
formed so that they can be folded into a box, and a foil packet
which contains tablets of a synthetic pheromone called
"Serricornin". Customs laboratory report 4-97-20319-001, dated
January 6, 1997, indicates that the paper product which will be
folded into a box to contain the attractant is composed of non-corrugated paperboard. The laboratory also reports that the
active ingredient in the attractant is an acrylic ester of acetic
acid (i.e., an organic, non-aromatic chemical). It is our
understanding that these traps are placed around factories where
cigarettes are made to reduce beetle populations.
ISSUE:
What is the proper classification of the beetle traps?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS is such that virtually all 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 GRIs may then be applied
in order.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes (ENs), although not dispositive
or legally binding, provide a commentary on the scope of each
heading of the HTSUS, and are generally indicative of the proper
interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989).
The headings under consideration are:
3808 Insecticides, rodenticides, fungicides,
herbicides, antisprouting products and plant-
growth regulators, disinfectants and similar
products, put up in forms or packings for retail
sale or as preparations or articles (for example,
sulfur-treated bands, wicks and candles, and
flypapers):
3808.10 Insecticides:
3808.10.1000 Fly ribbons (ribbon fly catchers)
Other:
Containing any aromatic or modified
aromatic insecticide:
* * *
3808.10.2500 Other
Other
3808.10.3000 Containing an inorganic substance
3808.10.5000 Other.
* * * * *
4819 Cartons, boxes, cases, bags and other packing
containers, of paper, paperboard, cellulose
wadding or webs of cellulose fibers; box files,
letter trays and similar articles, of paper or
paperboard of a kind used in offices, shops or
the like:
4819.10.00 Cartons, boxes and cases, of corrugated
paper or paperboard
* * *
4819.20.00 Folding cartons, boxes and cases, of
non-
corrugated paper or paperboard
4819.20.0020 Sanitary food and beverage containers
4819.20.0040 Other
In support of the contention that the merchandise should be
classified under the heading for cardboard, the protestant has
relied on NY Ruling 880892, dated December 14, 1992. In that
ruling, plastic beetle traps were classified as articles of
plastic even when imported with a pheromone. The protestant
compares the composition of the major component of the two trap
systems and, by analogy, reaches the position that the subject
merchandise should be classified as an article of cardboard.
There is a significant difference in the composition of the
components of the two different insect traps. The traps in NY
880892 were made of a durable plastic material which would be
retained for several years. The traps can be fitted with several
different types of pheromone, which can be replaced when they
lose potency. It is also possible to obtain the plastic traps
without the pheromone. Classification of the traps as an article
of plastic was predicated on the determination that the plastic
imparted the essential character to the trap.
The traps under protest are made of a thin cardboard
material, are not intended for reuse when the pheromone loses its
effectiveness and are not suitable for use with different types
of pheromones. The pheromone is clearly the component which
imparts the essential character to the article.
We are of the opinion that the subject articles do not meet
the terms of heading 4819. That heading provides for cartons,
boxes, cases, bags and other packing containers, of paper or
paperboard. The ENs for that heading indicate that such articles
are usually used for the packing, transport, storage or sale of
merchandise. The paperboard article under consideration is a
highly specialized device which has been designed for a purpose
quite unlike that of a packing container. The paperboard
component will be imported with the insecticide, not separately.
Heading 3808, HTSUS, provides for insecticides,
rodenticides, fungicides, herbicides,..., put up in forms or
packings for retail sale or as preparations or articles... .
Classification at the subheading level is dependent upon the type
and chemical structure of the article. Pursuant to EN 3808 (I),
attractants which are "used to attract insects to traps" are
considered to be insecticides. Accordingly, when the traps are
imported with the attractant, they are classified by application
of GRI 1, as insecticidal articles within heading 3808, HTSUS.
HOLDING:
The beetle trap assemblies described above which contain an
attractant (pheromone), are considered to be insecticidal
products within heading 3808, HTSUS. Classification at the
subheading level will depend upon the actual chemical structure
of the pheromone. With respect to the item under protest, the
synthetic pheromone utilized, "Serricornin", is an organic, non-aromatic chemical. Therefore, the "New Serrico" Cigarette Beetle
Trap is properly classified in subheading 3808.10.50, HTSUS.
The protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division