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HQ 956824




December 12,1994

CLA-2 CO:R:C:F 956824 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2933.29.3000

Area Director of Customs
110 S. Fourth Street
Minneapolis, Minnesota 55401

RE: Decision on Application for Further Review of Protest No. 3501-4-100268, on the classification of "Fungaflor" Technical.

Dear Sir:

This protest filed at your port concerns the classification of a fungicide from Belgium, "Fungaflor."

FACTS:

"Fungaflor" technical, product of Belgium, was entered on December 26, 1993, liquidated on April 22, 1994, with the protest filed on July 8, 1994. Technical information states that "Fungaflor" is the trade name for Imazalil technical; (chemical name: 1-[2-(2,4-dicholorophenyl)-2-2-(propenyloxy)ethyl]-H- imidazole); (CAS No.73790-28-0). It is regarded as a systemic fungicide for wheat and barley seeds in the treatment of common (dryland) root rot and associated seedling diseases.

"Fungaflor" technical was entered under the provision for other aromatic nitrile-function compounds: Pesticides: Fungicides in subheading 2926.90.2100, HTSUS. Customs changed the classification to that for Other Heterocyclic compounds with nitrogen hetero-atom(s) only; nucleic acids and their salts: Compounds containing an unfused imidazole ring (whether or not hydrogenated) in their structure: Aromatic or modified aromatic: Products described in additional U.S. Note 3 to Section VI, in subheading 2933.29.3000, HTSUS.

ISSUE:

Classification of a of an aromatic compound with an unfused benzene ring and an unfused imidazole ring. - 2 -

LAW AND ANALYSIS:

The importer believes that the chemical is classified as a nitrile-function compound fungicide in heading 2926, HTSUS. However, the Explanatory Notes to heading 2926 state that the general formula for nitriles is R.C=N in which R is an alkyl or aryl radical or sometimes nitrogen. The Farm Chemicals Handbook (1994) indicates that Imazalil contains no nitrile function, and therefore is not classifiable in heading 2926. Following the definition of aromatic and modified aromatic in Additional U.S. Note 2 (a) and (b), Section VI, HTSUS, it should be noted that the compound is aromatic (has an unfused benzene ring); and contains a heterocyclic ring (unfused imidazole ring) which contains only nitrogen hetero atoms in its structure. In addition it is not listed in the Chemical Appendix to the Tariff Schedule.

HOLDING:

You are directed to deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant not later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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