CLA-2 R:C:F 954108 JGH
David O. Elliott, Esq.
Barnes, Richardson & Colburn
475 Park Ave. South
New York, NY 10016
RE: Classification of certain insecticides; NYRL 844152 revoked.
Dear Mr. Elliott:
This is in reference to New York Ruling Letter (NYRL) 844152,
dated September 12, 1989, issued to you. In this ruling you were
advised that certain spore-crystal complex-based insecticides were
classified under the Harmonized Tariff Schedule of the United States
(HTSUS), in subheading 3002.90.5050, HTSUS, the provision for toxins,
other. Pursuant to section 625, Tariff Act of 1930 (19 U.S.C 1625), as
amended by section 623 of Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act, Pub. L.
103-182, 107 Stat. 2057, 2186 (1993) (hereafter section 625), notice
of the proposed revocation of NYRL 844152 was published May 31, 1995,
in the Customs Bulletin, Volume 29, Number 22.
FACTS:
The active ingredients of these biological insecticides are the
spore-crystal complex of the bacterium, which is an aerobic, ciliate
bacillus that forms a spore and, at the same time, a proteinaceous
parasporal inclusion commonly called a "crystal". In the original
classification request the products were described as natural toxins
that function as pesticides, living bacterial formulations made by
fermentation.
ISSUE:
Whether these biological insecticide preparations are classifiable
as other toxins in subheading 3002.90.5050, HTSUS, or other
insecticide put up in forms or packings for retail sale or as
preparations or articles, insecticides, in subheading 3808.10.5000,
HTSUS.
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LAW AND ANALYSIS:
The Explanatory Notes to heading 3002 state that toxins are
poisons secreted by bacteria; also included are toxoids, crypto toxins
and anti-toxins, of microbial origin. Thus, based on the evidence
originally presented, classification in heading 3002 was correct.
However, subsequently technical literature submitted on the products
composition showed that they were biological insecticides, with the
active ingredients being the spores and endotoxin crystals of the
bacterium. One version was said to contain a crystalline structure
produced in association with each spore which acts as the principal
insecticidal component.
In application, it is the crystalline protein action triggered by
proteolytic enzymes that provides the intended insecticidal action.
The crystalline proteins are highly toxic to pests and specific in
their activity. Thus, the insecticidal effect is due to the crystals
and not to the bacterial toxins nor cultures of microorganisms of
Heading 3002. The products as imported are neither bacterial toxins
(poisonous substances produced by bacteria) nor cultures of micro-organisms, but are insecticidal preparations; the spore has been
standardized to a specific concentration and mixed with surfactant, so
that it can be delivered after dilution with water. As pointed out in
the Explanatory Notes for Heading 3808, they are products which are
applied by spraying, dusting, sprinkling, coating, impregnating, etc.;
formulated preparations which achieve their results by nerve
poisoning, stomach poisoning, asphyxiation or odor. The EN also states
that heading 3808 also covers insecticidal preparations with a basis
of cultures of micro-organisms.
On the basis of the information supplied on the nature of these
products, in the light of the Explanatory Notes, it is concluded that
the products are properly classifiable in heading 3808.
HOLDING:
Bacterium-based insecticide preparations are classifiable under
the provision for insecticides, put up in forms or packings for retail
sale or as preparations or articles, other , in subheading
3808.10.5000, HTSUS. Accordingly, NYRL 844152 is hereby revoked.
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In accordance with section 625, this ruling will become effective
60 days after its publication in the Customs Bulletin. Publication of
rulings or decisions pursuant to section 625 does not constitute a
change of practice or position in accordance with section
177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1).
John Durant, Director
Commercial Rulings Division