HQ 960622

April 3, 1998

CLA-2 RR:CR:GC 960622 ptl

CATEGORY: Classification

TARIFF NO.: 3808.10.50

Port Director

U.S. Customs Service

1901 Cross Beam Drive

Charlotte, NC 28217

RE: Protest 1512-97-100162; \"New Serrico\" Cigarette Beetle

Trap; NY 880892.

Dear Port Director:

The following is our decision regarding Protest 1512-97-100162
concerning your classification under the Harmonized Tariff

Schedule of the United States, (HTSUS) of articles identified as

\"New Serrico\" Cigarette Beetle Traps.

The entry covering the merchandise was liquidated on April

25, 1997, under the provision for insecticides in subheading

3808.10.5000, HTSUS. A timely protest under 19 U.S.C. 1514 was

received on May 9, 1997. The protestant requested reliquidation

of the entry under the provision for cartons, boxes, cases, of

corrugated paper or paperboard in subheading 4819.20.0040, HTSUS.

FACTS:

The merchandise is an unassembled beetle trap. The

components of the trap are pieces of cardboard which have been

formed so that they can be folded into a box, and a foil packet

which contains tablets of a synthetic pheromone called

\"Serricornin\". Customs laboratory report 4-97-20319-001, dated

January 6, 1997, indicates that the paper product which will be

folded into a box to contain the attractant is composed of
non-corrugated paperboard. The laboratory also reports that the

active ingredient in the attractant is an acrylic ester of acetic

acid (i.e., an organic, non-aromatic chemical). It is our

understanding that these traps are placed around factories where

cigarettes are made to reduce beetle populations.

ISSUE:

What is the proper classification of the beetle traps?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRIs). The systematic detail of

the HTSUS is such that virtually all goods are classified by

application of GRI 1, that is, 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 may then be applied

in order.

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 generally indicative of the proper

interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.

35127, 35128 (August 23, 1989).

The headings under consideration are:

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):

3808.10 Insecticides:

3808.10.1000 Fly ribbons (ribbon fly catchers)

Other:

Containing any aromatic or modified

aromatic insecticide:

\* \* \*

3808.10.2500 Other

Other

3808.10.3000 Containing an inorganic substance

3808.10.5000 Other.

\* \* \* \* \*

4819 Cartons, boxes, cases, bags and other packing

containers, of paper, paperboard, cellulose

wadding or webs of cellulose fibers; box files,

letter trays and similar articles, of paper or

paperboard of a kind used in offices, shops or

the like:

4819.10.00 Cartons, boxes and cases, of corrugated

paper or paperboard

\* \* \*

4819.20.00 Folding cartons, boxes and cases, of

non-

corrugated paper or paperboard

4819.20.0020 Sanitary food and beverage containers

4819.20.0040 Other

In support of the contention that the merchandise should be

classified under the heading for cardboard, the protestant has

relied on NY Ruling 880892, dated December 14, 1992. In that

ruling, plastic beetle traps were classified as articles of

plastic even when imported with a pheromone. The protestant

compares the composition of the major component of the two trap

systems and, by analogy, reaches the position that the subject

merchandise should be classified as an article of cardboard.

There is a significant difference in the composition of the

components of the two different insect traps. The traps in NY

880892 were made of a durable plastic material which would be

retained for several years. The traps can be fitted with several

different types of pheromone, which can be replaced when they

lose potency. It is also possible to obtain the plastic traps

without the pheromone. Classification of the traps as an article

of plastic was predicated on the determination that the plastic

imparted the essential character to the trap.

The traps under protest are made of a thin cardboard

material, are not intended for reuse when the pheromone loses its

effectiveness and are not suitable for use with different types

of pheromones. The pheromone is clearly the component which

imparts the essential character to the article.

We are of the opinion that the subject articles do not meet

the terms of heading 4819. That heading provides for cartons,

boxes, cases, bags and other packing containers, of paper or

paperboard. The ENs for that heading indicate that such articles

are usually used for the packing, transport, storage or sale of

merchandise. The paperboard article under consideration is a

highly specialized device which has been designed for a purpose

quite unlike that of a packing container. The paperboard

component will be imported with the insecticide, not separately.

Heading 3808, HTSUS, provides for insecticides,

rodenticides, fungicides, herbicides,\..., put up in forms or

packings for retail sale or as preparations or articles\... .

Classification at the subheading level is dependent upon the type

and chemical structure of the article. Pursuant to EN 3808 (I),

attractants which are \"used to attract insects to traps\" are

considered to be insecticides. Accordingly, when the traps are

imported with the attractant, they are classified by application

of GRI 1, as insecticidal articles within heading 3808, HTSUS.

HOLDING:

The beetle trap assemblies described above which contain an

attractant (pheromone), are considered to be insecticidal

products within heading 3808, HTSUS. Classification at the

subheading level will depend upon the actual chemical structure

of the pheromone. With respect to the item under protest, the

synthetic pheromone utilized, \"Serricornin\", is an organic,
non-aromatic chemical. Therefore, the \"New Serrico\" Cigarette Beetle

Trap is properly classified in subheading 3808.10.50, HTSUS.

The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, Revised Protest Directive, dated August 4, 1993, a

copy of this decision attached to Customs Form 19, Notice of

Action, should be provided by your office to the protestant no

later than 60 days from the date of this decision and any

reliquidations of entries in accordance with this decision must

be accomplished prior thereto. Sixty days from the date of this

decision the Office of Regulations and Rulings will take steps to

make this decision available to Customs personnel via the Customs

Rulings Module in ACS and

the public via the Diskette Subscription Service, Freedom of

Information Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division