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NY R03320




March 8, 2006

MAR-2 RR:NC:2:238 R03320

CATEGORY: MARKING

Mr. Michael Blythe
Syngenta Crop Protection, Inc.
P.O. Box 18300
Greensboro, NC 27419-8300

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED Axial™ Herbicide; ARTICLE 509

Dear Mr. Blythe:

This is in response to your letter dated February 22, 2006, requesting a ruling on the country of origin marking requirements for an imported article, which is processed in a NAFTA country prior to being imported into the U.S. A marked sample was not submitted with your letter for review.

Axial™ Herbicide is a formulated, postemergence herbicide for the control of grass-weeds in wheat and barley. It contains Pinoxaden Technical (CAS No. 243973-20-8) as the active ingredient (9.71%, by weight). Pinoxaden Technical is produced in the United Kingdom and then shipped to Canada, where it will be formulated with other ingredients, such as Cloquintocet-mexyl

According to your letter, the Cloquintocet-mexyl is produced in Switzerland and then exported to Canada. (an herbicide safener “A substance added to a pesticide formulation to eliminate or reduce phytotoxic effects of the pesticide to certain crops.” IUPAC, Glossary of Terms Relatings (sic) to Pesticides, www.iupac.org/reports/1996/6805holland/s1.html), to produce the finished herbicide. The finished herbicide which will then be exported for retail sale to the U.S. in the form of a combination package containing one jug of Axial™ Herbicide and one jug of Adigor™ This office, in NY R02014, dated September 23, 2005, ruled that Adigor™ was properly classified in subheading 3402.90.5050, HTS. (an application adjuvant, “Formulant designed to enhance the activity or other properties of a pesticide mixture.” IUPAC, Glossary of Terms Relatings (sic) to Pesticides, www.iupac.org/reports/1996/6805holland/s1.html also formulated in Canada). The two components of the kit must be used together (i.e., mixed together prior to application) and are not sold separately.

You claim in your letter that Axial™ Herbicide contains not one but two active ingredients, namely: Pinoxaden Technical and Cloquintocet-mexyl. We disagree. Syngenta’s EPA label, MSDS sheets and Technical Information sheet all list one - and only one - active ingredient for Axial™ Herbicide: Pinoxaden Technical (9.71%, by weight).

Pursuant to Rule 1 of the General Rules of Interpretation, HTSUS, it is our determination that the combination package containing one jug of Axial™ Herbicide and one jug of Adigor™ (i.e., the imported product) satisfies the criteria of note 3 to Section VI “Goods put up in sets consisting of two or more separate constituents, some or all of which fall in this section and are intended to be mixed together to obtain a product of section VI or VII, are to be classified in the heading appropriate to that product, provided that the constituents are:

Having regard to the manner in which they are put up, clearly identifiable as being intended to be used together without first being repacked;

Entered together; and

Identifiable, whether by their nature or by the relative proportions in which they are present, as being complimentary one to another.” , HTSUS, and is, therefore, properly classified, as a prepared herbicide, within subheading 3808.30.1500, HTSUS. Furthermore, we find that the essential character of the set is imparted by the active ingredient (i.e., Pinoxaden Technical), and that no other material - including the herbicide safener (Cloquintocet-mexyl) or the adjuvant (Adigor™ ) - merits equal consideration with the active ingredient in determining the essential character of the set. Lastly, although not specifically requested by you, we rule that the applicable subheading for Pinoxiden Technical (the active ingredient in Axial™ Herbicide), in bulk form, is 2934.99.1500, HTSUS, which provides for: “Nucleic acids and their salts, whether or not chemically defined; other heterocyclic compounds: Other: Other: Aromatic or modified aromatic: Other: Pesticides: Other: Herbicides.”

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134 of the Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057, dated December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.1(b) of the regulations, defines "country of origin" as “the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the ‘country of origin’ within the meaning of this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.“

Section 134.1(j) of the regulations, provides that “The NAFTA Marking Rules are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country.” Section 134.1(g) of the regulations defines a "good of a NAFTA country" as “an article for which the country of origin is Canada, Mexico or the United States, as determined under the NAFTA Marking Rules.” Section 134.45(a)(2) of the regulations provides that “A good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish.”

You state that the imported product is formulated in Canada prior to being imported into the U.S. Since "Canada” is defined, under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules, in order to determine whether the imported product is a "good of a NAFTA country," and thus subject to the NAFTA marking requirements.

Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations (specifically, Sections 102.20 and 102.11(c)) to the facts of this case, we find that the good is not a good of a NAFTA country, for marking purposes. Rather, we find that the country of origin of the imported product is the United Kingdom, for marking purposes.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

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.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, Bureau of Customs and Border Protection, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski

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