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HQ 954108





July 18, 1995

CLA-2 R:C:F 954108 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3808.10.5000

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.

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.

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


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