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NY 894256

March 9, 1994

CLA-2-38:S:N:N7:238 894256


TARIFF NO.: 3808.30.1000

Mr. Ralph C. Meola
Rhone-Poulenc Inc.
CN 7500
Cranbury, NJ 08512-7500

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of Buctril Gel from Canada

Dear Mr. Meola:

In your letter dated January 19, 1994, you requested a ruling on the status of Buctril Gel from Canada under the NAFTA.

Buctril Gel is a gelatinous herbicide preparation containing both the octanoic and heptanoic acid esters of bromoxynil as the active ingredients. It is used for the control of certain broadleaf weeds. You indicate in your letter that manufacture of the mixture consisting of the octanoic and heptanoic acid esters of bromoxynil takes place in the United Kingdom. This entails reacting Bromoxynil phenol (technical) with both Octanol chloride and Heptanol chloride, which results in the ester mixture. You state that, "The manufacturing process is one reaction, but the two resulting components are separate molecules." Furthermore, "The two molecules retain their distinct chemical identity." The ester mixture is then sent to Canada, where it is combined with inert ingredients (gel medium) of U.S. and Canadian origin, to form the Buctril Gel, which constitutes the product being exported to the United States.

The applicable tariff provision for the Buctril Gel will be 3808.30.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for herbicides, antisprouting products and plant-growth regulators: containing any aromatic or modified aromatic herbicide, antisprouting agent or plant-growth regulator. The general rate of duty will be 1.8 cents per kilogram plus 9.7 percent ad valorem.

The merchandise does not qualify for preferential treatment under the NAFTA because the non-originating material (i.e., the ester mixture produced in the United Kingdom and shipped to Canada) used in the production of the goods (i.e., the Buctril Gel) will not undergo the change in tariff classification required by General Note 12(t)/38.2, HTSUSA. In our opinion, the ester mixture produced in the United Kingdom and imported into Canada is properly classifiable, for tariff purposes, within subheading 3808.30.1000, HTS, as an intermediate herbicidal preparation, since it already possesses herbicidal properties and requires only further compounding to produce the ready-for-use gel.

In our opinion, the merchandise is also ineligible for preferential treatment under the NAFTA by the conditions set forth in General Note 12(s), HTSUSA, which lists certain exceptions to change-in-tariff-classification rules. General Note 12(s)(iii) indicates that a material (in this case, the ester mixture), imported into the territory of a NAFTA party (in this case, Canada) for use in the production of a good classified in heading 3808 (in this case, the Buctril Gel), shall be treated as a material originating in the territory of a NAFTA party if: (A) such material is eligible, in the territories of both that party (in this case, Canada) and the party to whose territory the good is exported (in this case, the United States), for duty-free entry at the most-favored-nation rate of duty; or (B) the good is exported to the territory of the United States and such material would, if imported into the territory of the United States, be free of duty under a trade agreement that is not subject to a competitive-need limitation. Accordingly, since the ester mixture (i.e., the "material") meets neither the requirements of General Note 12(s)(iii)(A) or (B) set forth above, it cannot be treated as a material originating in the territory of a NAFTA party.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

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, Office of Regulations and Rulings, U.S. Customs Service, 1301 Constitution Ave. N.W., Franklin Court, Washington, D.C. 20229.


Jean F. Maguire

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