CLA-2 OT:RR:CTF:TCM W 968435 ARM
Ms. Jill Thurau
PETsMart, Inc.
19601 N. 27th Ave.
Phoenix, AZ 85027
RE: Revocation of NY R02157; Dog & Cat Get Away
Dear Ms. Thurau:
This letter is to inform you that Customs and Border Protection (“CBP”) has reconsidered New York (NY) Ruling Letter R02157, issued to you on August 8, 2005, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Dog & Cat Get Away. CBP classified the merchandise in subheading 3824.90.91, HTSUS, which provides for: “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Other: Other.” We have reviewed that ruling and determined it is in error.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), 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), a notice was published in the CUSTOMS BULLETIN, Volume 43, No. 11, on March 12, 2009, proposing to revoke New York Ruling Letter (NY) R02157, dated August 8, 2005, and proposing to revoke any treatment accorded to substantially identical transactions. One comment was received in opposition to the notice.
FACTS:
The merchandise at issue is identified as Dog & Cat Get Away. It is a mixture of allyl isothiocyanate (the chemical compound responsible for the pungent tast of mustard, horseradish and wasabi), capsaicin and related compounds (the active componenets of chili peppers), that has been put up in a spray bottle for retail sale. It is intended for use as a vertebrate animal repellent. Dog & Cat Get Away is registered with the U.S. E.P.A. (EPA REg. No. 50932-9) for the control of cats, deer, dogs, rabbits, raccoons, and squirrels.
ISSUE:
Is Dog & Cat Get Away classified as a “pesticide” under heading 3808, HTSUS, or as a chemical compound not elsewhere specified or included in heading 3824, HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The 2009 HTSUS provisions under consideration are as follows:
3808 Insecticides, rodenticides, fungicides, herbicides, anti-sprouting 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):
3808.99 Other:
Other:
3808.99.95 Other . . . . .
* * * * *
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
3824.90 Other:
Other:
Other:
Other . . . . .
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS at the international level. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The ENs to heading 3808, HTSUS, state, in pertinent part, the following:
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.
Heading 3824, HTSUS, only includes products that are “not elsewhere specified or included.” Therefore, if the product is specified by the terms of heading 3808, HTSUS, it cannot be classified in heading 3824, HTSUS.
Pests are defined as “any organism which injures man, his property or his environment, or which annoys him. Such organisms include principally certain insects, nematoedes, fungi, weeds, birds, and rodents, or any other terrestrial or aquatic plant or animal life, or virus, bacteria, or other organisms (except microorganisms on or in living man or other living animals.” Meisterpro Crop Protection Handbook 2006, D 322, (Richard T. Meister, ed., Meister Pub. Co. 2006). The instant product repels cats, deer, dogs, rabbits, raccoons, and squirrels away from lawns and landscaping. Squirrels are rodents (www.ucmp.berkeley.edu/mammal/reodentia/ rodentia.html). The EN to heading 3808, HTSUS, states that products intended to repel pests are classified in the heading and mentions odor as one of the ways that these products achieve their results. Accordingly, Dog and Cat Get Away, put up in spray bottles for retail sale, meets the terms of heading 3808, HTSUS, as a product similar to a rodenticide and is described by EN 3808.
Commenter notes that EN 3808 specifically states that the products included in the heading are intended to destroy rodents, wild birds, etc.; insofar as the merchandise is not used to destroy or kill an animal, the commenter believes that classification in heading 3824, HTSUS, is proper. Commenter fails to note the next sentence that includes products in the heading which are meant
only to repel pests. Moreover, heading 38078, HTSUS, covers “similar products” which, in accord with EN 3808, include those products meant to repel pests such as wicks and candles. Hence, we are not persuaded by commenter’s argument that our tariff classification of the product is incorrect. Insofar as the merchandise is classifiable in heading 3808, HTSUS, resort to heading 3824, HTSUS, is not necessary.
HOLDING:
By application of GRI 1, Dog and Cat Get Away is classified in heading 3808, HTSUS. Specifically, the merchandise is classified in subheading 3808.99.95, HTSUS, which provides for: “Insecticides, rodenticides, fungicides, herbicides, anti-sprouting 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: Other: Other.” The 2009, column one general rate of duty is 5% ad valorem.
Duty rates are provided for your convenience 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 R02157, dated August 8, 2005, is revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division