OT:RR:CTF:CPMM H291002 CkG
TARIFF NO: 2905.29.90, 2915.39.90
Port Director
U.S. Customs and Border Protection
Port of Portland
8337 NE Alderwood Road
Portland, OR 97220
Re: Application for Further Review of Protest No. 2904-17-100038; classification of
synthetic pheromones
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 2904-17-100038, dated February 14, 2017, on behalf of Suterra, LLC (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of two products identified as “OFM Technical Pheromone” and “CM Technical Pheromone” in heading 3808, HTSUS.
The subject merchandise was entered on October 7, 2015 and January 26, 2016, in heading 3808, HTSUS, which provides for, inter alia, insecticides and similar products. The entries were liquidated on August 19, 2016 and December 9, 2016, in heading 3808, HTSUS. Protestant currently claims classification of the OFM Technical Pheromone in heading 2915, HTSUS, as an ester of acetic acid, and of the CM Technical Pheromone in heading 2905, HTSUS, as an unsaturated monohydric alcohol.
FACTS:
The two products at issue, identified as “OFM technical pheromone” and “CM technical pheromone,” are chemicals used in the agricultural industry to disrupt the mating of certain pests harmful to crops.
The OFM technical pheromone consists of three chemicals, as follows:
- (Z)-8-Dodecenyl acetate (CAS 28079-04-1): 90%
- (E)-8-Dodecenyl acetate (CAS 38363-29-0): 9%
- (Z)-8-Dodecen-1-ol (CAS 40642-40-8): 1%
The second two chemicals, (E)-8-Dodecenyl acetate and (Z)-8-Dodecen-1-ol,
are impurities that result solely from the manufacturing process, and are not a deliberate addition to the product. The Dodecenyl acetate is the active ingredient in the OFM Technical Pheromone. The OFM is not dissolved in water or in any other solvents in its imported condition.
The CM technical pheromone is composed entirely of E,E-8,10-dodecadien-1-ol (CAS 33956-49-9). It is not dissolved in water or in any other solvents in its imported condition.
ISSUES:
Whether the OFM and CM Technical Pheromones are classified in heading 3808, HTSUS, as insecticides or similar products.
Whether the OFM Technical Pheromone is classified in heading 2915, HTSUS, as an ester of a saturated acyclic monocarboxylic acid.
Whether the CM Technical Pheromone is classified in heading 2905, HTSUS, as an acyclic alcohol.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2904-17-100038 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification shall be determined 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
29.05: Acyclic alcohols and their halogenated, sulfonated, nitrated or nitrosated
derivatives:
Unsaturated monohydric alcohols:
2905.29: Other:
2905.29.90: Other…
2915: Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides
and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives:
Esters of acetic acid:
2915.39: Other:
Other:
Other:
Other:
2915.39.90: Other…
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:
3803.91: Insecticides:
Other:
3808.91.50: Other:
* * * *
Note 1 to Chapter 29 provides as follows:
Except where the context otherwise requires, the headings of this chapter apply only to:
(a) Separate chemically defined organic compounds, whether or not containing impurities;
(b) Mixtures of two or more isomers of the same organic compound (whether or not
containing impurities), except mixtures of acyclic hydrocarbon isomers (other than
stereoisomers), whether or not saturated (chapter 27);
(c) The products of headings 2936 to 2939 or the sugar ethers, sugar acetals and sugar
esters, and their salts, of heading 2940, or the products of heading 2941, whether or not
chemically defined;
(d) Products mentioned in (a), (b) or (c) above dissolved in water;
(e) Products mentioned in (a), (b) or (c) above dissolved in other solvents provided that the
solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use;
(f) The products mentioned in (a), (b), (c), (d) or (e) above with an added stabilizer
(including an anticaking agent) necessary for their preservation or transport;
(g) The products mentioned in (a), (b), (c), (d), (e) or (f) above with an added antidusting
agent or a coloring or odoriferous substance added to facilitate their identification or for
safety reasons, provided that the additions do not render the product particularly suitable
for specific use rather than for general use;
Chapter 29 Note 5(A) provides as follows:
“The esters of acid-function organic compounds of subchapters I to VII with organic compounds of these subchapters are to be classified with that compound which is classified in the heading placed last in numerical order in these subchapters.”
* * * *
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 the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The Explanatory Note to heading 2905 provides, in pertinent part, as follows:
Acyclic alcohols are derivatives of acyclic hydrocarbons obtained by replacing one or more atoms of hydrogen by the hydroxyl group. They are oxygenated compounds which react with acids giving the compounds known as esters.
The alcohols may be primary (containing the characteristic group –CH2OH), secondary (containing the characteristic group >CHOH) or tertiary (containing the characteristic group COH).
This heading covers the acyclic alcohols described below and their halogenated, sulphonated, nitrated, nitrosated, sulphohalogenated, nitrohalogenated, nitrosulphonated, nitrosulpho- halogenated or other compound derivatives (e.g., the monochlorohydrins of glycerol and of ethylene glycol).
EN 29.15 provides, in pertinent part, as follows:
This sub-Chapter covers the carboxylic acids which contain the characteristic function (–COOH), called the carboxyl group.
Carboxylic acids may contain one or more carboxyl groups (–COOH) (monocarboxylic acids or polycarboxylic acids, respectively).
If the hydroxyl group (–OH) is removed, the residue is an acyl radical which can be representedby the formula (RCO–) where R is an alkyl or aryl radical (methyl, ethyl, phenyl, etc.). Acyl radicals enter into the formulae of anhydrides, halides, peroxides, peroxyacids, esters and salts.
EN 38.08 provides, in pertinent part:
This heading covers a range of products (other than those having the character of medicaments, including veterinary medicaments heading 30.03 or 30.04) intended to destroy pathogenic germs, insects (mosquitoes, moths, Colorado beetles, cockroaches, etc.), mosses and moulds, weeds, rodents, wild birds, etc. Products intended to repel pests or used for disinfecting seeds are also classified here.
These insecticides, disinfectants, herbicides, fungicides, etc., are applied by spraying, dusting, sprinkling, coating, impregnating, etc., or may necessitate combustion. They achieve their results by nerve poisoning, by stomach poisoning, by asphyxiation or by odour, etc.
These products are classified here in the following cases only :
When they are put up in packings (such as metal containers or paperboard
cartons) for retail sale as disinfectants, insecticides, etc., or in such forms (e.g., in balls, strings of balls, tablets or plates) that there can be no doubt that they will normally be sold by retail.
Products put up in these ways may or may not be mixtures. The unmixed products are mainly chemically defined products which would otherwise fall in Chapter 29, e.g., naphthalene, or 1,4 dichlorobenzene.
When they have the character of preparations, whatever the presentation (e.g.,
as liquids, washes or powders). These preparations consist of suspensions or dispersions of the active product in water or in other liquids (e.g., a dispersion of DDT (ISO) (clofenotane (INN), (1,1,1 trichloro 2,2 bis(p chlorophenyl)ethane) in water), or of other mixtures. Solutions of active products in solvents other than water are also included here (e.g., solutions of pyrethrum extract (other than standardised pyrethrum extract), or copper naphthenate in a mineral oil).
Intermediate preparations, requiring further compounding to produce the ready for use insecticides, fungicides, disinfectants, etc., are also classified here, provided they already possess insecticidal, fungicidal, etc., properties.
When they are put up in the form of articles such as sulphur treated bands,
wicks and candles (for disinfecting and fumigating vats, living quarters, etc.), fly papers (including those coated with glue not containing poisonous matter), grease bands for fruit trees (including those not containing poisonous matter), papers impregnated with salicylic acid for preserving jams, papers or small wooden sticks coated with lindane (ISO, INN) and acting by combustion, etc.
The products of heading 38.08 can be divided into the following groups :
(I) Insecticides
Insecticides include not only products for killing insects, but also those having a repellent or attractant effect. The products may be in a variety of forms such as sprays or blocks (against moths), oils or sticks (against mosquitoes), powder (against ants), strips (against flies), cyanogen gas absorbed in diatomite or paperboard (against fleas and lice).
Many insecticides are characterised by their mode of action or method of use. Among these are :
- insect growth regulators : chemicals which interfere with biochemical and
physiological processes in insects.
* * * *
Both the OFM and CM Technical Pheromones were entered and liquidated under heading 3808, HTSUS, which provides for, inter alia, insecticides and similar products, put up in forms or packings for retail sale or as preparations or articles. Protestant currently claims classification of the OFM Technical Pheromone in heading 2915, HTSUS, as an ester of acetic acid, and the CM Technical Pheromone in heading 2905, HTSUS, as an unsaturated, monohydric alcohol.
The active ingredients in both products are synthetic pheromones which disrupt the mating of certain agricultural pests, used to protect crops from such pests. The Explanatory Note to heading 38.08 explains that the heading includes chemicals which interfere with biochemical and physiological processes in insects. The function of the OFM and CM Technical Pheromones thus falls within the scope of heading 3808. However, the products are not put up in the forms required by heading 3808; they are imported in bulk, and are therefore not in forms or packings for retail sale; they are not preparations suspended in water or other liquids; they are not mixtures (the inactive chemicals left in the final product are a byproduct of the manufacturing process and are not left in or added to the final product); and they are not articles. As neither product is put up in the forms required by heading 3808, they cannot be classified therein. As both products are separate, chemically defined organic compounds containing impurities which have not been added to the product nor left in for the purpose of rendering the product particularly suitable for a specific use, they are classified in Chapter 29.
The OFM pheromone, which consists primarily of the active ingredient (Z)-8-Dodecenyl acetate (CAS 28079-04-1), is an organic ester of acetic acid. Acetic acid is a carbolyxic acid, classified in heading 2915. An ester is made by replacing the hydrogen of an acid by an alkyl or other organic group. In this case, a hydrogen in acetic acid is replaced with a methyl group, making the OFM pheromone an ester of acetic acid. Pursuant to Note 5 to Chapter 29, esters of acid-function organic compounds of subchapters I to VII of Chapter 29, HTSUS, with organic compounds of these subchapters are to be classified with that compound which is classified in the heading placed last in numerical order in these subchapters. By application of Note 5, the OFM Pheromone is classified in heading 2915. At the subheading level, esters of acetic acid are provided for under 2915.3. As the compound does not have any aromatic rings and is not specifically provided for in any of the defined subheading under 2915.3, it is classified in subheading 2915.39.90, as an other ester of acetic acid.
Heading 2905 provides for acyclic alcohols and their derivatives. The CM pheromone is an acyclic (linear) compound with a single hydroxyl group bound to a carbon atom, making it an acyclic, monohydric alcohol. As the compound also contains two double bonds between carbon atoms, it is an unsaturated compound, classified in subheading 2905.29.90, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the OFM Technical Pheromone is classified in heading 2915, HTSUS, specifically subheading 2915.39.90, HTSUS, which provides for “Saturated acyclic monocarboxylic acids and their anhydrides, halides, peroxides
and peroxyacids; their halogenated, sulfonated, nitrated or nitrosated derivatives: Esters of acetic acid: Other: Other: Other: Other.” The 2017 column one, general rate of duty is 3.7% ad valorem.
By application of GRIs 1 and 6, the CM Technical Pheromone is classified in heading 2905, specifically subheading 2905.29.90, HTSUS, which provides for “Acyclic alcohols and their halogenated, sulfonated, nitrated or nitrosated derivatives: Unsaturated monohydric alcohols: Other: Other.” The 2017 column one, general rate of duty is 3.7% ad valorem.
You are instructed to GRANT the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public online at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division