OT:RR:NC:N3:140
Mr. Paul Fong
Kenso Corporation (M) Sdn Bhd
Petaling Jaya, 46050
Malaysia
RE: The country of origin of 2,4-Dichlorophenoxyacetic 2-ethylhexyl ester (CAS 1928-43-4) emulsion concentrate.
Dear Mr. Fong:
In your letter dated September 29, 2019, you requested a country of origin ruling determination on 2,4-Dichlorophenoxyacetic 2-ethylhexyl Ester. The documentation that you provided was sent to our laboratory for review. That review is now complete and our decision is as follows.
The merchandise under consideration is 2,4-Dichlorophenoxyacetic 2-ethylhexyl Ester (CAS 1928-43-4). You indicate it will be in the form of an emulsion concentrate in its imported form.
The 2,4-D Dichlorophenoxyacetic Acid (2,4-D Acid) (CAS # 94-75-7) (AKA - Acetic acid, 2-(2,4-dichlorophenoxy)-) of Chinese origin will be imported into Malaysia. In Malaysia, a chemical process will be performed to convert the base 2,4-D Acid into an esterified form (2,4-Dichlorophenoxyacetic 2-ethylhexyl Ester). It is also known as 2,4-D 2EHE. We note, that prior to the emulsion step, both the base form and the esterified form (if pure) would be classified in the same 10 digit subheading under subheading 2918.99 which are provided for eonomine as 2,4-Dichlorophenoxyacetic acid, its salts and esters.
In the instant case, the 2,4-Dichlorophenoxyacetic Acid when shipped from China already possesses the essential character of the finished product (Herbicide). You indicate that the chemical reaction performed in Malaysia is “slow and reversible”. It involves a chemical reaction in the presence of toluene and sulfuric acid. The process involves the removal of water to accomplish the esterification step. The water is removed, as the reaction proceeds, to inhibit the ester from reverting back to the base form. Our laboratory has reviewed the documents that you provided and agrees with your assertion that a chemical reaction has occurred.
The 2,4-D 2EHE herbicide will then be “mixed proportionately” with emulsifiers, and diluted with an aromatic hydrocarbon solvent to obtain the end use product. It will be shipped to the United States in 1000 Liter IBC totes. It is an herbicide emulsion of subheading 3808.93.15.
The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. 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.
The courts have held that a substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). Substantial transformation determinations are based on the totality of the evidence. See Headquarters Ruling (HQ) W968434, date January 17, 2007, citing Ferrostaal Metals Corp. v. United States, 11 CIT 470, 478, 664 F. Supp. 535, 541 (1987). The 2,4-D Acid has undergone a chemical reaction in Malaysia (esterification reaction). The esterification process transforms the base chemical compound into a more useable structure, which enhances its intended use as an herbicide. In addition to the chemical modification to the base structure, additions made prior to export, create a prepared herbicide which is classified in Heading 3808. The product in Malaysia undergoes the esterification chemical reaction, is then diluted and emulsified to enhance its dispersability and absorbability. It is our opinion that the Country of Origin for marking purposes is Malaysia.
This merchandise may be subject to the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which are administered by the U.S. Environmental Protection Agency, Office of Pesticide Programs. Information on the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) can be obtained by contacting the National Pesticide Information Center (NPIC) at 1-800-858-7378, or by visiting the EPA website at www.epa.gov.
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 Paul Hodgkiss at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division