HQ 955393: Reconsideration of New York Ruling Letter (NYRL) 879995, RegardingCertain Copper-8-Quinolinolate 98% (Quinolate 98) Powder (CAS 10380-28-6),in bulk form, from France

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                   HQ 955393

                                 July 20, 1994

CLA-2  CO:R:C:F  ALS

CATEGORY:  Classification

TARIFF NO.  2933.40.3000

Ms. Gracia Berg
Steptoe and Johnson
1330 Connecticut Ave., NW
Washington, DC 20036

RE:  Reconsideration of New York Ruling Letter (NYRL) 879995,     Regarding
Certain Copper-8-Quinolinolate 98% (Quinolate 98)     Powder (CAS 10380-28-6),
in bulk form, from France

Dear Ms. Berg:

      This is in reference to your request for reconsideration of NYRL 879995,
dated November 17, 1992, which concluded that the subject product is classifiable
in subheading 2933.40.3000, Harmonized Tariff Schedule of the United States
(HTSUSA).

FACTS:

      The subject product is Quinolate 98 in B' form manufactured under a special
patented process which leaves its chemical composition unchanged.  The product,
as imported, is the noted form of Copper-8-quinolinolate 98, CAS-10380-28-6. 
It is the copper salt of 8-hydroxyquinoline, an aromatic heterocyclic compound
containing nitrogen hetero-atoms only.  It is a polymorphous compound, meaning
that it has more than one crystalline form, with the imported product
constituting the B' form.  It is used as a fungicide.

Issue:

      Is the product classifiable in Heading 3808, HTSUSA, as an intermediate
fungicidal preparation or in Heading 2933, HTSUSA, as a single chemical compound
of known structure?

                                     - 2 -

LAW AND ANALYSIS:

      Classification of merchandise under the HTSUSA is governed by the General
Rules of Interpretation (GRI's) taken in order.  
GRI 1 provides that the classification is determined first in accordance with
the terms of the headings and any relative section and chapter notes.  If GRI
1 fails to classify the goods and if the headings and legal notes do not
otherwise require, the remaining GRI's are applied, taken in order.

      The product as imported is Quinolate 98 in the B' form manufactured,
according to counsel, under a proprietary process, pursuant to a U.S. patent,
which leaves its chemical composition unchanged.  The product is an odorless,
olive drab color, powder imported in bulk form.  Subsequent to importation it
is mixed in a solvent-based solution, or emulsions, or dispersions to create
the finished products.  Since products are dutiable as imported and since the
process of creating the finished product takes place subsequent to importation,
we have not considered the latter processing.  Also, since the request for
confidential treatment appears to relate solely to the processing in the United
States, we have not considered the specifics thereof and have not granted
confidential treatment thereto.

      NYRL 879995 held that the imported product is a single compound of known
structure and is classifiable in subheading 2933.40.3000, HTSUSA.  Counsel states
that the product is an intermediate fungicidal product in the preparation of
commercial ready-to-use fungicides and that, pursuant to General Explanatory
Note (D)(2)(h) to Chapter 29, HTSUSA, it is properly classifiable in subheading
3808.20.5000, HTSUSA, as an intermediate fungicidal preparation.

      We disagree with counsel's conclusions for several reasons.  We note that
the product, as imported, is a single chemical compound of a known structure
which is altered by the special patented process.  While the product is combined
with other ingredients to form the finished product, this does not make it an
intermediate preparation at the time of importation.  The product, as imported,
is not a mixture of two of more substances suitable for a specific use.  It does
not consist of suspensions or dispersions of the active product in water or in
other liquids, or of other mixtures.  It is only after importation that the
product becomes suitable for a specific use when it is mixed as previously noted. 
 
                                     - 3 -

      Counsel notes that the imported product has, prior to importation,
undergone a special process which leaves its chemical composition unchanged and
that it, therefore, is excludable from Chapter 29 by the application of General
Explanatory Note (D)(2).  While that source would seem to be applicable to the
instant product at first glance, we note that such Note provides that this type
of product is excludable only when "put up as described in heading 38.08."  We,
therefore, considered  Explanatory Note (EN) 38.08 to see if it complied with
the provisions thereof.  That EN provides that the product is classified in
heading 3808 when the product is put up in packing or in forms "that there can
be no doubt that they will normally be sold by retail."  Products which are
suspensions or dispersions of the active product in water or in other liquids
or of other mixtures or which are solutions of active products in solvents other
than water are also included thereunder.  The Note also provides that the
products are includable in such heading when they are put up in the form of
articles as described thereunder.  

     After considering EN 38.08, we have concluded that the instant product does
not meet the requirement thereof as described above.  Accordingly, the product
is not put up as described in heading 38.08, as is required for it to be excluded
from classification in Chapter 29.

HOLDING:

      Copper-8-quinolinolate 98 (Quinolate 98) in B' form imported in bulk and
compounded subsequent to importation into finished fungicide products is
classifiable in subheading 2933.40.3000, HTSUSA.  Products so classifiable are
subject to a general rate of duty of 11.1 percent ad valorem.

      NYRL 879995 is hereby affirmed.

                                    Sincerely,



                                    John Durant, Director