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HQ 967382




January 27, 2005

CLA-2 RR:CR:GC 967382AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2933.59.1500, 3808.20.1500

Mr. Mike Blythe
International Operations Manager
Syngenta Crop Protection, Inc.
Greensboro, N.C. 27419-8300

RE: Reconsideration of NY D86614; Abound ™ Flowable, Azoxystrobin Technical

Dear Mr. Blythe:

This is in reference to your letter, dated September 21, 2004, to the National Commodity Specialist Division, requesting reconsideration of New York Ruling Letter (NY) D86614, dated January 27, 1999, regarding the classification of Abound ™ Flowable, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). In addition, you requested classification for the related products, Amistar™ and Heritage™, both flowable fungicides containing the active ingredient in Azoxystrobin Technical, for which you also request a ruling.

In NY D86614, we classified Abound ™ Flowable in subheading 3808.20.1500, HTSUS, the provision for “Fungicides: Other: Other: Other.” We have reviewed the ruling and find it to be correct for the foregoing reasons.

FACTS:

The subject product, Abound™ Flowable, is a broad-spectrum, preventative fungicide, in a flowable formulation, containing 22.9% Azoxystrobin (CAS# 131860-33-8) as the active ingredient.

According to the material safety data sheet, Azoxystobin is a beta-methoxyacrylate fungicide with the physical traits of an almost odorless light brown powder. Its chemical name is Methyl (E)-2-{2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl}-3-methoxyacrylate assigned CAS no. 131860-33-8. Its chemical structure consists of two unfused benzene rings and one unfused pyrimidine ring situated between the two benzene rings.

NY D86614 classified Abound™ Flowable in subheading 3808.20.1500, HTSUS, which provides for: “[I]nsecticides, ... , fungicides, ... , put up ... as preparations or articles ... : Fungicides: Containing any aromatic or modified aromatic fungicide: Other .”

ISSUE:

Whether Azoxystobin Technical, and by extension, certain flowable fungicide formulations made there from, is an aromatic fungicide.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS provisions under consideration are:

2933 Heterocyclic compounds with nitrogen hetero-atom(s) only (con.):

Compounds containing a pyrimidine ring (whether or not hydrogenated) or piperazine ring in the structure:

2933.59 Other:

Pesticides:

Aromatic or modified aromatic:

2933.59.15 Other

Other

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):

3808.20 Fungicides:

Containing any aromatic or modified aromatic fungicide:

3808.20.15 Other

Other:

Containing any fungicide which is a thioamide, thiocarbamate, dithiocarbamate, thiuram orisothiocyanate:

Other:

3808.20.50 Other

Additional U.S. Note 2 to Section VI, states, in pertinent part, as follows:

The term “aromatic” as applied to any chemical compound refers to such compound containing one or more fused or unfused benzene rings;

(b) The term “modified aromatic” describes a molecular structure having at least one six-membered heterocyclic ring which contains at least four carbon atoms and having an arrangement of molecular bonds as in the benzene ring or in the quinone ring, but does not include any such molecular structure in which one or more pyrimidine rings are the only modified aromatic rings present;

The instant chemical compound contains two unfused benzene rings in its structure. It is therefore an aromatic compound under Note 2(a) to Section VI. The fact that the instant chemical compound is not a modified aromatic compound under Note 2(b) to Section VI because the only modified aromatic ring present is a pyrimidine ring, does not negate the fact of its being an aromatic compound.

HOLDING:

Hence, Azoxystobin Technical is classified in subheading 2933.59.15, HTSUS, the provision for Heterocyclic compounds with nitrogen hetero-atom(s) only: Compounds containing a pyrimidine ring (whether or not hydrogenated) or piperazine ring in the structure: Other: Pesticides: Aromatic or modified aromatic: Other.” The 2005 General Column 1 duty rate is 6.5% ad valorem.

Fungicidal flowable preparations, such as Abound™ Flowable, Amistar™ and Heritage™, are classified in subheading 3808.20.1500, HTSUS, the provision for 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): Fungicides: Containing any aromatic or modified aromatic pesticide: Other. The 2005 General Column 1 duty rate is 6.5% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY D86614 is affirmed.

Sincerely,

Myles B. Harmon, Director

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