OT:RR:NC:N3:140
Mr. Paul Fong
Kenso Corporation (M) Sdn Bhd
Petaling Jaya, 46050
Malaysia
RE: The country of origin of MCPA 2-ethylhexyl Ester (CAS No. 29450-45-1), in the form of an emulsion concentrate.
Dear Mr. Fong:
In your letter dated June 01, 2020 and June 09, 2020, you requested a country of origin ruling determination on MCPA 2-ethylhexyl Ester (CAS No. 29450-45-1) in the form of an emulsion concentrate. After the production of MCPA 2EHE (CAS No.: 29450-45-1), through an esterification chemical reaction, the mixture will then be formulated as an emulsion concentrate herbicide. You indicated in a follow up email that the product will be ready to use as an emulsion concentrate when imported into the United States.
The merchandise under consideration is an MCPA ester herbicide which is formulated in Malaysia. Kenso will import 4-chloro-2-methylphenoxyacetic Acid (CAS No.: 94-74-6), also known as MCPA Acid that is a stable dormant solid form molecule from China in bulk bags. MCPA Acid (CAS No.: 94-74-6) will undergo an esterification process via a chemical reaction with 2-ethyl hexanol (CAS No.: 104-76-7) in the Malaysia facility to form MCPA 2-ethylhexyl Ester (CAS No.: 29450-45-1). After the production of MCPA 2EHE (CAS No.: 29450-45-1), the mixture will then be formulated as an emulsion concentrate herbicide as desired. The product being imported into the United States will be the formulated emulsion concentrate.
The MCPA 2EHE herbicide is “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. As imported, 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 MCPA 2-ethylhexyl Ester (CAS No. 29450-45-1), in the form of an emulsion concentrate, 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, and 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