CLA–2 OT:RR:CTF:TCM H261067 NCD
Liz Gant
Samuel Shapiro & Co.
100 North Charles Street Suite 1200
Baltimore, MD 21201
Re: Revocation of NY N238867; Classification of Zap N Trap Glue Board Refills from China
Dear Ms. Gant:
This is in response to your letter of December 10, 2014, on behalf of Clark Associates, Inc. (“Clark Associates”), requesting reconsideration of New York Ruling Letter (NY) N238867, dated March 11, 2013. In NY N238867, U.S. Customs and Border Protection (CBP) classified a Zap N Trap Glue Board Refill (“glue board”) in subheading 3808.91.50 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “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): Other: Insecticides: Other.” We have determined that NY N238867 is incorrect and, for the reasons set forth below, are revoking that ruling. We are also enclosing with this letter samples of the subject glue board and similar items that you submitted for our inspection.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published in the Customs Bulletin, Vol. 49, No. 39, on September 30, 2015. No comments were received in response to the notice.
FACTS:
In NY N238867, CBP stated, with regard to the subject glue boards, as follows:
“The subject product is called the Zap N Trap Glue Board Refill. The Refills are used in an 18 Watt insect trap. They are imported in packs containing 6 refills.”
In your December 10, 2014 letter, you describe the subject merchandise as follows:
“The subject products are Zap N Trap Glue Board Refills, items numbers 605GBV18 and 605GBV36. 605GBV18 is a six pack of glue boards sized 11 3/8 inches by 5 inches and is a part of the 18 watt Zap N Trap Insect Trap/Bug Zapper Wall Sconce…
The Zap N Traps are for use in food operations. The sconce is mounted on a wall with a UV bulb behind it intended to attract insects. The glue board mounts behind the sconce cover. As insects are attracted to the light, they become trapped on the glue board. The user is able to open the sconce cover to remove the board and insert a replacement.
The glue boards do not contain any chemicals or scent additives to lure insects to the trap. They are sheets of paperboard with an adhesive on one side. The boards come with a release sheet which is peeled off to expose the adhesive. The insects will stick to the adhesive when they fly to the light.”
We have inspected the sample of the subject glue board and found that it consists of a 19.75 inch by 5.25 inch rectangular cardboard paper strip. It is slightly concaved in shape and is covered on the convex side, but not on the concave side, with adhesive material.
ISSUE:
Whether the merchandise at issue is properly classified in subheading 3808.91.10, HTSUS, as a fly ribbon, in subheading 3808.91.50, HTSUS, as an “other insecticide,” or in subheading 8543.90.88, HTSUS, as an “other part” of an electrical machine, having individual functions, not specified or included elsewhere in Chapter 85.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (AUSRIs). The GRIs and the AUSRIs are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2015 HTSUS provisions under consideration are as follows:
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):
Other:
3808.91 Insecticides:
3808.91.10 Fly ribbons (ribbon fly catchers).
Other:
3808.91.50 Other.
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.90 Parts:
Other:
Other:
8543.90.88 Other.
In your December 10, 2014 letter, you assert that because the subject glue boards are “a part of the Zap N Trap system,” they are properly classified in heading 8543 as parts of electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85. When considering classification of a particular product in a “parts” provision of the HTSUS, we must apply AUSRI 1(c), which states as follows:
In the absence of special language or context which otherwise requires—
(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory…
Pursuant to AUSRI 1(c), the subject glue boards are only classifiable as parts if it cannot be established that they are prima facie classifiable in a heading that specifically provides for them. See Headquarters Ruling Letter (HQ) 967233, dated February 18, 2005 (citing Mitsubishi Int’l Corp. v. United States, 182 F.3d 884 (Fed. Cir. 1999), Sharp Microelectronics Tech., Inc. v. United States, 122 F.3d 1446 (Fed. Cir. 1997), and Nidec Corp. v. United States, 861 F. Supp. 136 (Ct. Int’l Trade 1994), aff’d 68 F.3d 1333 (Fed. Cir. 1995)). We therefore initially consider whether the subject glue boards are specifically described by heading 3808, HTSUS.
Heading 3808 describes, inter alia, “Insecticides…and similar articles, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur-treated bands, wicks and candles, and fly-papers).” EN 38.08 provides, in pertinent part, as follows:
This heading covers a range of products…intended to destroy…insects…
These products are classified here in the following cases only:
…
(3) When they are put up in the form of articles such as…fly-papers (including those coated with glue not containing poisonous matter)…
Heading 3808 specifically provides for “fly-paper,” but this term is left undefined in the HTSUS. When a tariff term is not defined in either the Nomenclature or its legislative history, “the term's correct meaning is its common meaning.” Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod at 1576.
The Oxford Online Dictionary defines fly paper as “[s]ticky, poison-treated strips of paper that are hung indoors to catch and kill flies,” and the Merriam-Webster Online Dictionary defines it as “a long piece of sticky paper that is used for catching and killing flies” and as “paper coated with a sticky often poisonous substance for killing flies.” EN 38.08 is consistent with these definitions insofar as it suggests that fly paper may be covered with glue, but it counsels inclusion of fly paper in heading 3808 where it lacks poisonous matter. Moreover, we have previously classified fly-catching paper strips in heading 3808 where these strips were coated with non-poisonous adhesive. See HQ H563064, dated October 8, 2004 (classifying cardboard strips coated with non-poisonous, fly-trapping adhesive in heading 3808); and NY A82387, dated April 22, 1996 (determining that adhesive-coated paper designed to catch flies is properly classified in heading 3808). We accordingly conclude, in considering dictionary definitions of fly paper, the relevant EN, and CBP precedent in toto, that fly paper consists of adhesive-covered paper strips designed to catch or kill flies, irrespective of whether the strips contain poison.
The instant glue boards consist of cardboard paper strips that are coated on one side with adhesive. As you state in your December 10, 2014 letter, the glue boards are designed to trap and kill flies. We recognize that, as you point out in your letter, the glue boards do not contain any chemicals or scent additives. However, heading 3808 does not require that fly-papers contain such additives, and EN 38.08 suggests that fly-strips containing merely glue remain within the scope of heading 3808. Consequently, we find that the glue boards are “fly-strips” as described by heading 3808. Because they are in turn excluded, by operation of AUSRI 1(c), from classification as parts in heading 8543, HTSUS, the glue boards are properly classified in heading 3808.
In your December 10, 2014 letter, you cite NY 885109, dated April 21, 1993, as support for your contention that the glue boards are properly classified in heading 8543. NY 885109 involved classification of an entire trap and monitoring system that was comprised of a metal housing with a baked enamel finish, a U/V resistant board with a sticky glue surface, and multiple U/V tubes. Thus, unlike the instant glue boards, the product at issue in that case was comprised only in part of an adhesive strip. CBP classified that article in heading 8543 as an “other” machine or apparatus, rather than as a part thereof, and therefore was not obligated to consider AUSRI 1(c) in its ruling. In effect, NY 885109 does not conflict with CBP’s determination in NY N238867 that the instant glue boards are classifiable in heading 3808.
However, we do find NY N238867 to be in error with regard to classification of the glue boards at the subheading level. Because the glue boards are a form of fly paper, a term that is interchangeable with fly ribbons, they are specifically described by subheading 3808.91.10, HTSUS, which provides for “Fly ribbons (ribbon fly catchers).” Consistent with CBP precedent, the glue boards are thus properly classified in that subheading, rather than as “other insecticides” in the basket subheading 3808.91.50, HTSUS. See HQ H563064 (concluding that a glue board is properly classified in subheading 3808.10.10); and NY A82387 (classifying paper coated with adhesive in subheading 3808.10.10).
HOLDING:
By application of GRIs 1 and 6, the instant glue boards are classified in heading 3808, HTSUS, specifically subheading 3808.91.1000, HTSUS (Annotated), which provides for “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): Other: Insecticides: Fly ribbons (ribbon fly catchers).” The column one, general rate of duty is 2.8% ad valorem.
This product may be subject to the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which are administered by the U.S. Environmental Protection Agency, Office of Pesticide Programs. Information on the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) can be obtained by contacting the National Pesticide Information Center (NPIC) at 1-800-858-7378, or by visiting the EPA website at www.epa.gov.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N238867, dated March 11, 2013, is hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Joanne Roman Stump
Acting Director, Commercial & Trade Facilitation Division