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HQ 089065

October 9, 1991

CLA-2 CO:R:C:F 089065 EAB


TARIFF NO.: 3808.30.1000

District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202

RE: Application for Further Review of Protest No. 0901-0- 701109, dated December 17, 1990, concerning herbicide known as Assert 300/150 SC

Dear Sir:

This is a decision on a protest filed December 17, 1990, against your decision in the classification of merchandise liquidated September 28, 1990.


The protestant entered all goods in subheading 2934.90.1400, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for aromatic or modified aromatic herbicides specified or included therein and dutiable at the general rate of 13.5 percent ad valorem. The goods were imported on April 27, 1990, in fifty-two 200-litre containers, 11,966 kg net weight, to be repackaged then shipped to Canada for sale there. Protestant did not reply to a May 18, 1990 written request for additional information on, among other matters, the use of the product, and also failed to advise within 30 days, either in writing or by telephone, that such a reply could not be made. The subject entry was liquidated without change on September 28, 1990.

Protestant seeks reclassification of the goods to subheading 3808.30.2000, HTSUSA, providing in part for herbicides put up in packings for retail sale or as preparations; herbicides; other [not containing any aromatic or modified aromatic herbicide]; other, containing an inorganic substance, dutiable at the general rate of 5 percent. Protestant offers no argument as to why the liquidated classification under subheading 2934.90.1400, HTSUSA, is in error and why reclassification is more proper, other than to include the manufacturer's safety data sheet for the subject toxic compound.

The 1989 Farm Chemical Handbook of Pesticides describes "Assert" as a trade name for a mixture of methyl-2-(4-isopropyl- 4-methyl-5-oxo-2-imidazolin-2-yl)-p-toluate and methyl-6-(4- isopropyl-4-methyl-5-oxo-2-imidazolin-2-yl)-m-toluate, of the family imidazolinone. The meta- and para-toluate moieties bonded with the imidazolin moiety are, of course, aromatic structures. Used as a selective postemergence herbicide, its formulation is liquid concentrate at 2.5 lb/gal. The foregoing publication identifies protestant's principal as the basic producer of Assert. From the manufacturer's safety data sheet included in the protest documentation, it clearly appears that "Assert 300 SC" is "Assert" by simply another name, perhaps indicative of a particular proportion of the two ingredients. The manufacturer's safety data sheet indicates that Assert 300/150 SC is composed of a mixture containing 30 percent by weight of imazamethabenz methyl ester, an aromatic herbicide assigned the CAS No. 081405- 85-8, and 15 percent by weight of Arkol N-110, a surface active, i.e., wetting or emulsifying, agent having CAS No. 9016-45-9.


What is the proper classification under the HTSUSA of Assert 300/150 SC, an herbicidal composition of methyl-2-(4-isopropyl- 4-methyl-5-oxo-2-imidazolin-2-yl)-p-toluate and methyl-6-(4- isopropyl-4-methyl-5-oxo-2-imidazolin-2-yl)-m-toluate, when imported mixed with the surfactant Arkol N-110?


Merchandise imported into the U.S. is classified under the HTSUSA. 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 which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

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 GRI's taken in order.

The Explanatory Notes to the Harmonized Commodity Descrip- tion and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading; although neither binding upon the contracting parties to the Harmonized System Convention nor considered to be dispositive interpretations, they should be consulted on the proper scope of the System.

Chapter 29 applies, in part, to separate chemically defined organic compounds, whether or not containing impurities. Chapter Note 1(a). As discussed in General Explanatory Note (A) therefor, "[a] separate chemically defined compound is a single chemical compound of known structure, which does not contain other substances deliberately added during or after its manufacture * * *." [emphasis in original]

By virtue of the fact that the imported article is not a single chemical compound, but a mixture of two aromatic compounds with a wetting agent, it is not classifiable under any of the headings of chapter 29.

Note 1, chapter 38, provides, inter alia:

This chapter does not cover: (a) Separate chemically defined elements or compounds with the exception of the following: * * * (2) * * * herbicides * * * and similar products put up as described in heading 3808. [emphasis supplied]

As noted earlier herein, the protestant has not responded to Customs written request for further information concerning the use of Assert 300/150 SC, i.e., whether it is put up in forms or packings for retail sale. We find from the documentation included in the entry and in the protest that the article is in fact imported in 200-litre containers, and is to be repacked in the U.S. for shipment to and sale in Canada. In view of such, we are of the opinion that Assert 300/150 SC is not, in this case, an herbicide put up in packings for retail sale. Notwithstanding this finding, since it is not a chemically pure compound, but a mixture of an active product (the para and meta forms of the toluates) and a wetting agent (the Arkol N-110), it is a preparation "put up" as such. (See also Explanatory Note 38.08(2): classified under heading 3808, HTSUSA are products that "have the character of preparations, whatever the presentation (e.g., as liquids, washes or powders). These preparations consist of suspensions or dispersions of the active product in water or in other liquids * * * or of other mixtures * * * .") We are of the opinion that heading 3808 includes herbicidal preparations or mixtures of two or more separate chemically defined compounds regardless of packaging, i.e., whether put up in packings for retail sale or in bulk.

We are of the opinion that the subject article, being a mixture, is properly classifiable under heading 3808, HTSUSA, as an herbicide preparation. We are of the further opinion that the subject article, being a mixture of aromatic compounds, is properly classifiable under subheading 3808.30.1000, dutiable in the year 1990 at the general rate of 1.8 per kilogram plus 9.7 percent ad valorem.


Assert 300/150 SC, an herbicidal composition of methyl-2- (4-isopropyl-4-methyl-5-oxo-2-imidazolin-2-yl)-p-toluate and methyl-6-(4- isopropyl-4-methyl-5-oxo-2-imidazolin-2-yl)-m- toluate, when imported mixed with the surfactant Arkol N-110 is properly classified under subheading 3808.30.1000, HTSUSA, which provides for herbicides put up as preparations, herbicides, containing any aromatic herbicide.

Articles classified under that subheading for the year 1990 were subject to a general rate of duty of 1.8 per kilogram plus 9.7 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.


John Durant, Director

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