United States v. Cavalier Shipping Co., Inc.

• Decision Date: 07 June 1973
• Docket Number: Customs Appeal No. 5502.
• Citation: 60 CCPA 152,478 F.2d 1256
• Parties: The UNITED STATES, Appellant, v. CAVALIER SHIPPING CO., INC., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

60 CCPA 152, 478 F.2d 1256 (1973)

The UNITED STATES, Appellant, v. CAVALIER SHIPPING CO., INC., Appellee.

Customs Appeal No. 5502.

United States Court of Customs and Patent Appeals.

June 7, 1973.

Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Herbert P. Larsen, New York City, for the United States.

George Bronz, Washington, D. C., attorney of record, for appellee.

Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.

MARKEY, Chief Judge.

This appeal is from the decision and judgment of the United States Customs Court, First Div., 67 Cust.Ct. 440, C.D. 4317, 337 F.Supp. 447 (1971), sustaining eight consolidated protests against the classification of certain importations from Israel of methyl bromide containing 2% chloropicrin under item 405.15 of the TSUS as pesticides "obtained, derived, or manufactured * * * in part" from a benzenoid product provided for by subpart A or B of Part 1 of Schedule 4. The merchandise was held properly classifiable as other halogenated hydrocarbons under item 429.48, the claimed classification. We affirm.

The following stipulation sets forth the salient facts:

1. The imported merchandise is a liquid under pressure composed of methyl bromide (68.6%), petroleum hydrocarbons (30.0%) and chloropicrin (1.4%) except in those instances where the merchandise is entered in small cans in which case they were composed of methyl bromide (98%) and chloropicrin (2%).

2. Its uses are those comprised within the term "pesticide," as defined in TSUS schedule 4, part 1, subpart C, headnote 2.

3. The petroleum hydrocarbons serve only as a diluent and/or propellant, are not an active pesticidal ingredient.

4. In these importations, the chloropicrin is used in this formulation as a warning agent to alert people by its pervasive, unpleasant aroma, in the event of leakage of the methyl bromide, which is poisonous.

5. * * *

6. Methyl bromide is a halogenated hydrocarbon, but not one described in any of the TSUS items 429.20-429.47, inclusive.

Stipulation 5 relating to the origin of the chloropicrin was stricken at trial. But the presumption that the chloropicrin involved was of benzenoid origin has not been disputed, appellee having offered no proof as to the actual derivation. Thus the chloropicrin falls within the scope of subpart A or B of Schedule 4, Part 1. The record also establishes that chloropicrin is capable in itself of serving as a pesticide but not in concentrations as low as 1 or 2%.

Appellant's basic contention is that the presence of the chloropicrin cannot be ignored in the classification of the methyl bromide products. It is urged that the Customs Court committed reversible error in treating the merchandise as if it were a single compound. Proper recognition of the presence of the benzenoid component in the mixtures is said to require classification under the original classification, item 405.15 or, alternatively, under 409.00 as "mixtures * * * in part of" a benzenoid pesticide product provided for in subpart C of Schedule 4, Part 1.

The Customs Court agreed that minute quantities of a substance could have a bearing on classification, but added that "this should only be the case when these substances are playing a `substantial' part." A two-sided test encompassing both a quantitative and a functional approach was set forth as the guide for determining whether the presence of a particular component makes the importation "in part" of that material. Adapting the test to this case, the court took the position that

* * * the provision for products in part of benzenoid origin will govern an article which contains any amount of a beneznoid sic ingredient which plays a part in the article\'s principal function or an article containing a benzenoid ingredient which does not play a part in the article\'s principal function but is nevertheless present in commercially meaningful quantities.

The court went on to point out that the principal function of the importation was as a pesticide while the chloropicrin in the small quantities employed herein served only as a warning agent. Accordingly it concluded:

The chloropicrin in the importation does not serve a pesticidal purpose nor is it present in quantities which would warrant considering it a meaningful importation of material of benzenoid origin. It follows that neither the functional test nor the quantitative test justifies the classification of the importation on the basis of the chloropicrin being of benzenoid origin.

The alternative classification was dismissed under analogous reasoning, the court stating:

An ingredient of benzenoid origin, which does not play a part in the principal function of the mixture and is not present in commercially meaningful quantities, does not make the mixture one which is within the intended scope of the above provision for mixtures.

Cases wherein an ingredient added solely for safety of transportation or as a preservative or binder was disregarded for tariff purposes were also cited as support for ignoring the chloropicrin component of the mixtures.

Appellant contends that the Customs Court should have recognized that a statutory definition exists for the language "in part of," rendering the functional-quantitative test based on case law improper and unnecessary. We agree that General Headnote 9(f)(iv) defines "in part of" as containing "a significant quantity of the named material," with the de minimus rule being applicable. The interpretation, however, of "significant" and the determination of the corresponding scope of the de minimus exception remain open.

Appellant urges that headnotes 2 and 3 to Schedule 4 ¹ are sufficient to make clear the meaning of de minimus with regard to the specific area of chemical compounds and mixtures. It is true that only impurities are positively excluded in headnote 2(a). But we cannot agree that such impurities represent the full extent of the de minimus exception...