March 12, 2009 CBP Bulletin Notice on Classification of Dog & Cat Get Away
In the March 12, 2009 issue of the U.S. Customs and Border Protection Bulletin (Vol. 43, No. 11), CBP published a notice proposing to revoke one ruling and a treatment as follows:
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Proposed revocation of ruling; proposed revocation of treatment. CBP is proposing to revoke one ruling on the classification of Dog & Cat Get Away. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by April 11, 2009, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Dog & Cat Get Away. 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 taste of mustard, horseradish and wasabi), capsaicin and related compounds (the active components 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.
CBP is proposing to issue HQ W968435in order to revoke NY R02157 and determine that the Dog & Cat Get Away is classified under HTS 3808 as a pesticide rather than under HTS 3824 as a chemical compound not elsewhere specified or included.
CBP proposes this change as a correction based largely on the Explanatory Notes (ENs). The ENs to heading 3808 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."
Furthermore, heading 3824 only includes products that are "not elsewhere specified or included." Therefore, if the product is specified by the terms of heading 3808 it cannot be classified in heading 3824.
The instant product repels cats, deer, dogs, rabbits, raccoons, and squirrels away from lawns and landscaping. Squirrels are rodents. The ENs to heading 38.08 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, as a rodenticide and is described by EN 38.08. Insofar as the merchandise is classifiable in heading 3808, resort to heading 3824 is not necessary.
CBP now proposes that by application of GRI 1, the merchandise is classified in subheading 3808.99.95, 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."
Proposed: 3808.99.95, 5%; Current: 3824.90.9290, 5% (formerly 3824.90.9190)
March 12, 2009 CBP Bulletin (Vol. 43, No. 11) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2009/