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NY G81552




September 13, 2000

CLA-2-38:RR:NC:2:238 G81552

CATEGORY: CLASSIFICATION

TARIFF NO.: 3808.20.5000

Ms. Michelle Driver
Encore Technologies
111 Chesire Lane, Suite 500
Minnetonka, MN 55305

RE: The tariff classification of CONTANS®WG from Germany

Dear Ms. Driver:

In your letter dated July 10, 2000, resubmitted on August 15, 2000, you requested a tariff classification ruling.

The subject product, CONTANS®WG, is a formulated biological fungicide, in the form of dark-brown, water-dispersible granules, containing viable spores of the fungus, Coniothyrium minitans strain CON/M/91-08, as the active ingredient (5.30% by weight). A glucose carrier constitutes the inert ingredient (94.70% by weight). The spores are standardized to a specific concentration of 1 x 109 active spores/gram. The product is indicated for the control of Sclerotinia species in the soil of all crops susceptible to Sclerotinia infection. Subsequent to importation, the granules need merely to be mixed with water, prior to application (by spraying) to the soil surface.

You state in your letter that you believe that the subject product is properly classifiable, presumbably as a culture of microorganisms, within subheading 3002.90.50, HTS. However, while we agree that cultures of microorganisms used as a basis for pesticides are excluded from classification, as pesticidal preparations, in heading 3808, HTS, we disagree with your assertion. In fact, the submitted production flow chart and draft EPA label clearly indicate that, in its condition as imported, CONTANS®WG, constitutes a formulated product or preparation, based on active fungal spores, rather than a culture of microorganisms intended for use, subsequent to importation, as a starting material or ingredient in the formulation/preparation of biological pesticides. Headquarters Ruling Letter 954108, dated July 18, 1995; Explanatory Note 3808(2), HTS; and Explanatory Note 3808, exclusion (a)(v), HTS. Accordingly, it is our determination that the subject product is excluded from classification within subheading 3002.90.50, HTS.

The applicable subheading for the subject product will be 3808.20.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for "[I]nsecticides, 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): Fungicides: Other: Other: Other." The rate of duty will be 5 percent ad valorem.

This merchandise may be subject to the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which is administered by the U.S. Environmental Protection Agency, Office of Pesticide Programs. You may contact them at 401 M Street, S.W., Washington, DC 20460, telephone number (703) 305-7092.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Harvey Kuperstein at 212-637-7068.

Sincerely,

Robert B. Swierupski

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