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NY R02378

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August 18, 2005

MAR-2-:RR:NC:2:238 R02378

CATEGORY: MARKING

Mr. Steven Johnsen
Bayer Corporate and Business Services LLC 100 Bayer Road
Pittsburgh, PA 15205-9741

RE: The country of origin of OLYMPUS™ FLEX Herbicide; substantial transformation

Dear Mr. Johnsen:

This is in response to your letter dated August 4, 2005, on behalf of your client, Bayer CropScience LP (“BCS”), requesting a country of origin determination.

You state the following in your letter: BCS produces Propoxycarbazone-sodium (trade name: OLYMPUS™ Technical; CAS No. 181274-15-7), an organic herbicide, at its plant in Kansas City. Bayer CropScience AG (“BAG”) produces Mesosulfuron-methyl (trade name: MesoMaxx™; CAS No. 208465-21-8), an organic herbicide, at its plant in Frankfurt, Germany. BCS will export the Propoxycarbazone-sodium to Germany, where it will be formulated with Mesosulfuron-methyl and inert ingredients by BAG to create OLYMPUS™ FLEX (EPA Reg. No. 264-833), a water-dispersible herbicide preparation, in granular form, (“WDG”), containing Propoxycarbazone-sodium (6.75% by weight) and Mesosulfuron-methyl (4.50% by weight) as the active ingredients. The finished product, OLYMPUS™ FLEX, will then be exported to the U.S. by BAG to BCS, who will then offer it for sale. You indicate that the combination of two, active ingredients in OLYMPUS™ FLEX - as opposed, for example, to the single active ingredient (Propoxycarbazone-sodium) found in OLYMPUS™ 70% Water Dispersible Granular Herbicide, and the single active ingredient (Mesosulfuron-methyl) found in Atlantis® Selective Herbicide - imparts unique herbicidal properties (“characteristics”) to OLYMPUS™ FLEX not found in the aforementioned two, single-active-ingredient 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. The regulations implementing the requirements and exceptions to 19 U.S.C. §1304 are set forth in Part 134, Customs & Border Protection Regulations (19 C.F.R. Part 134).

Section 134.1(b), Customs & Border Protection Regulations (19 C.F.R. §134.1(b)), defines the 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.”

A substantial transformation occurs when articles lose their identity and become articles having a new name, character or use. United States v. Gibson-Thomsen Co., 27 CCPA 267 at 270 (1940), National Juice Products v. United States, 10 CIT 48, 628 F. Supp. 978 (CIT 1986).

In the instant case, we find that the combining of U.S.-produced Propoxycarbazone-sodium and German-produced Mesosulfuron-methyl, in Germany, results in a product, i.e., OLYMPUS™ FLEX Herbicide, which has an identity and character pesticidally distinct from the materials from which it was produced. Therefore, we hold that Propoxycarbazole-sodium and Mesosulfuron-methyl undergo a substantial transformation as a result of the operations performed in Germany, and that the country of origin is Germany.

Since the granules, per se, are, of course, incapable of being marked, they are excepted from being marked (19 C.F.R. Section 134.32(a)). Accordingly, pursuant to 19 C.F.R. Section 134.32(d), receipt of the imported product by the purchaser at retail in a container marked with their (i.e., the granules’) country of origin will suffice to meet the requirements of 19 U.S.C. §1304.

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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