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NY J88041




August 25, 2003

CLA-2-38:RR:NC:2:238 J88041

CATEGORY: CLASSIFICATION

TARIFF NO.: 3808.90.0800

Mr, William F. Harvey
Har-Met International, Inc.
60 Houk Road
Doylestown, PA 18901

RE: The tariff classification of a formulated biocide composed of 60% triclosan (CAS-3380-34-5) and 40% propylene glycol

Dear Mr. Harvey:

In your letter dated August 6, 2003, you requested a tariff classification ruling.

The subject product consists of a formulated biocide (preparation) composed of (by weight) 60% triclosan, a broad-spectrum antibacterial/anti-microbial agent, and 40% propylene glycol. You state in your letter that your firm “[h]as been working with the manufacturer in the development of a blend of TRICLOSAN (60%) in Propylene Glycol (40%) for ease of use by U.S. Companies in their manufacturing process.” An article found on the World Wide Web, re: triclosan, indicates that “[A]s a result of its bacteriostatic activity against a wide range of both gram-negative and gram-positive bacteria it has found increasing and popular use in personal care products, i.e., toothpaste, deodorant soaps, deodorants, antiperspirants and body washes, detergents, dish washing liquids, cosmetics and anti-microbial creams, lotions and hand soaps.” “It is also used as an additive in plastics, polymers and textiles to give these materials antibacterial properties.” Id.

For the record, although listed in Table 1 of the Pharmaceutical Appendix to the Tariff Schedule, it is our determination that triclosan is not a “drug,” for tariff purposes. See Lonza v. U.S., U.S. Court of Appeals for the Federal Circuit, Appeal No. 94-1335. Furthermore, Customs, in HQ 963030, dated October 23, 2000, ruled (inter alia) that “[A] product need not be considered a ‘drug’ in order to be included in the Pharmaceutical Appendix.”

The applicable subheading for the subject product will be 3808.90.0800, Harmonized Tariff Schedule of the United States (HTS), which provides for “Insecticides, , disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles : Other: Containing any aromatic or modified aromatic pesticide: Other.” The rate of duty will be 6.5 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 646-733-3033.

Sincerely,

Robert B. Swierupski

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