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NY J88677




October 2, 2003

CLA-2-38A:RR:NC:2:238 J88677

CATEGORY: CLASSIFICATION

TARIFF NO.: 3808.30.5000

Ms. Roxanne J. Daecher
Rohm and Haas Company
100 Independence Mall West
Philadelphia, PA 19106-2399

RE: The tariff classification of SmartFresh™ 3.3% Technology

Dear Ms. Daecher:

In your letter dated September 10, 2003, you requested a tariff classification ruling.

The subject product, SmartFresh™ 3.3% Technology, is a formulated (i.e., prepared mixture) plant-growth regulator, having the physical appearance of a white powder. It contains 3-4% (by weight) of 1-methylcyclopropene (CAS-3100-04-7), as the active ingredient. The remaining ingredients making up the product are as follows: α-cyclodextrin (92-94% by weight), dextrose (1-10 percent by weight), and water (6% by weight (maximum)). You state in your letter that “SmartFresh 3.3% Technology, as supplied, does not get chemically compounded or mixed with anything other than water to facilitate release (of the active ingredient) and to be used commercially.” The product is designed for use in enclosed spaces (produce storage facilities and in-transit containers) to maintain the harvest quality of fresh-picked fruits and vegetables, by working with the natural ripening process to prevent accelerated ripening or senescence due to the naturally occurring plant hormone, ethylene. Upon removal from storage (and exposure from the subject product), the natural process involved in the ripening of the fruit and vegetables slowly begins again. Lastly, you indicate that the subject product “[i]s registered with the EPA as a biochemical plant growth regulator under the US (sic) Federal Insecticide, Fungicide and Rodenticide Act,” (EPA registration number 71297-2).

You state in your letter that you “[d]o not consider this material fully formulated.” Therefore, you believe it to be properly classified “as a chemical,” in subheading 2902.19.0050, HTS, which provides for “Cyclic hydrocarbons: Cyclanes, cyclenes and cycloterpenes: Other: Other.” We disagree. The subject product is not a separate chemically defined compound, which is defined in Part ”(A)” of the General Explanatory Notes to Chapter 29, HTS, as “[a] substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram.” “Separate chemically defined compounds containing other substances deliberately added during or after their manufactureare excluded from this Chapter.” Id. Furthermore, Part “(2)” of the General Explanatory Notes to heading 3808, HTS, state that “Intermediate preparations, requiring further compounding to produce the ready-for-use insecticides, fungicides, disinfectants, etc., are also classified here (i.e., under heading 3808, HTS), provided they already possess insecticidal, fungicidal, etc., properties.” Based on the facts presented in your ruling submission, in conjunction with the Explanatory Notes cited above, it is our determination that the subject product constitutes an intermediate preparation, for tariff purposes, rather than a separate chemically defined compound.

The applicable subheading for the subject product will be 3808.30.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for “Insecticidesherbicides, antisprouting products and plant-growth regulatorsput upas preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): Herbicides, antisprouting products and plant-growth regulators: 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 1200 Pennsylvania Avenue, N.W., Washington, D.C., 20460, telephone number (703) 308-7026. Alternatively, you may contact the regional office (Region 3) of the EPA, located at 1650 Arch Street, Philadelphia, PA 19103-2029, telephone number (215) 814-5103.

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 646-733-3033.

Sincerely,

Robert B. Swierupski

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