OT:RR:CTF:VS H341715 JH
George Tuttle III, Esq.
Tuttle Law Offices
3950 Civic Center Drive, Suite 310
San Rafael, CA 94903
RE: Classification; Country of Origin; Substantial Transformation; Fungicide; Section 301
Dear Mr. Tuttle:
This is in response to your letter dated September 12, 2024, requesting a ruling on behalf
of the Gowan Company LLC, regarding the tariff classification, and country of origin for
purposes of Section 301 measures of a granular formulated mixture intended for use as a
fungicide, containing active ingredients from China and India.
FACTS:
The Gowan Company, LLC (Arizona, US), plans to import Gavel 75DF®, a granular
formulated mixture, from India. The formulated mixture is a fungicide. It is stated that two
active ingredients, Zoxamide of Chinese origin and Mancozeb of Indian origin, along with other
inert materials, will be mixed in India using formulation chemistry, which is the science of
creating stable and effective mixtures from various chemical ingredients which are picked for
their specific traits, to produce Gavel 75DF®. No chemical reaction results from the mixture of
the active ingredients.
Zoxamide, is a fungicide that makes up eight percent of the mixture and you state that it
is classifiable under subheading 3808.92.15, Harmonized Tariff Schedule of the United States
(“HTSUS”). The Environmental Protection Agency’s (“EPA”) website 1 reveals that Zoxamide
1 Fact Sheet for Zoxamide Fact Sheet for Zoxamide, EPA (May 2001), https://www3.epa.gov/pesticides/
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is used for the treatment of early and late blight of potatoes. Mancozeb is a fungicide that makes
up 67 percent of the mixture and you state that it is classifiable under subheading 3808.92.24,
HTSUS. The EPA’s website 2 reveals that Mancozeb is used on a variety of food/feed crops,
including tree fruits, vegetables crops, field crops, grapes, ornamental plants, and sod farms.
Other uses include greenhouse grown flowers and ornamentals, and seed and seed piece
treatment. The remaining 25% of materials are inert materials that are of Indian origin.
ISSUES:
1. What is the tariff classification of Gavel 75DF®?
2. What is the country of origin of Gavel 75DF® for purposes of Section 301 trade
remedies?
LAW AND ANALYSIS:
Classification of Gavel 75DF ®
Classification under the HTSUS is made in accordance with the General Rules of
Interpretation (“GRIs”). GRI 1 provides that classification shall be determined first according to
the terms of the headings of the tariff schedule and any relative section or chapter notes. In the
event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRIs 2 through 6 may be applied in order.
Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis,
as classification at the heading level.
The following HTSUS provisions are under consideration:
3808: Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products
and plant-growth regulators, disinfectants and similar products, put up in
forms or packings for retail sale or as preparations or articles (for example,
sulfur-treated bands, wicks and candles, and flypapers):
3808.92: Fungicides:
Containing any aromatic or modified aromatic fungicide:
3808.92.15: Other:
Other:
chem_search/reg_actions/registration/fs_PC-101702_17-May-01.pdf (Last visited April 10, 2025)
2Fact Sheet for Mancozeb, EPA (September 2005), https://www3.epa.gov/pesticides/chem_
search/reg_actions/reregistration/fs_PC-014504_1-Sep-05.pdf (Last visited April 10, 2025)
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Containing any fungicide which is a thioamide,
thiocarbamate, dithiocarbamate, thiuram or isothiocyanate:
3808.92.24: Maneb; Zineb; Mancozeb; and Metiram.
Note 1(a) to Chapter 29, HTSUS, states, in relevant part, that “[e]xcept where the context
otherwise requires, the headings of this chapter apply only to: (a) Separate chemically defined
organic compounds, whether or not containing impurities.”
Note 2 to Section VI, HTSUS, provides as follows:
2. …[G]oods classifiable in heading … 3808 by reason of being put up in
measured doses or for retail sale are to be classified in those headings and in no
other heading of the tariff schedule.
Note 1(a)(2) to Chapter 38 provides in relevant part that “[t]his chapter does not cover:
(a) Separate chemically defined elements or compounds with the exception of the following: (2)
Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth
regulators, disinfectants and similar products put up as described in heading 3808[.] (Italicized
emphasis added.)
The Explanatory Notes of the Harmonized Commodity Description Coding System
(“ENs”) constitute the official interpretation of the Harmonized System. While neither legally
binding nor dispositive, the ENs provide a commentary on the scope of each heading of the
Harmonized System and are generally indicative of the proper interpretation of these headings.
See T.D. -80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 38.08 states, in relevant part:
This heading covers a range of products … intended to destroy pathogenic germs,
insects … mosses and moulds, weeds, rodents, wild birds, etc. … These
insecticides, disinfectants, herbicides, fungicides, etc., are applied by spraying,
dusting, sprinkling, coating, impregnating, etc., or may necessitate combustion.
They achieve their results by nerve-poisoning, by stomach-poisoning, by
asphyxiation or by odour, etc. …
These products are classified here in the following cases only: … (2) When they have the
character of preparations, whatever the presentation (e.g., as liquids, washes or powders). These
preparations consist of suspensions or dispersions of the active product in water or in other
liquids … Intermediate preparations, requiring further compounding to produce the ready-for-use
insecticides, fungicides, disinfectants, etc., are also classified here, provided they already possess
insecticidal, fungicidal, etc., properties ….
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EN 38.08(II) defines “fungicides” as:
Fungicides are products which protect against the growth of fungi (e.g.,
preparations based on copper compounds) or which are designed to eradicate the
fungi already present (e.g., preparations based on formaldehyde).
First, we note that the Gavel 75DF® at issue is a formulated fungicidal preparation.
Mancozeb and Zoxamide are registered as fungicides as provided under heading 3808, HTSUS,
and are both the active ingredients of the preparation. Further, according to your submission,
Gavel 75DF® is prepared and packed to be put up for retail sale when imported which you aver
is covered under heading 3808, HTSUS. Thus, you contend that Gavel 75DF® is classifiable
under heading 3808, HTSUS.
In your submission, you preliminarily assert that Gavel 75DF® is classifiable under
subheading 3808.92.24, HTSUS, through the reference of GRI 6 and GRI 3(b). Goods
classifiable under GRI 3(b) are classified as if they consisted of the material or component which
gives them their essential character, which may be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of a constituent material in relation
to the use of the article. You believe the essential character of Gavel 75DF® is imparted by the
ingredient, Mancozeb. We disagree with that assertion.
In New York Ruling (NY) N007374, dated March 9, 2007, CBP classified a prepared
fungicide containing active ingredients Mancozeb and Mefenoxam, an aromatic, under
subheading 3808.92.24, HTSUS. CBP stated the importer incorrectly referred to Rule 3(b) of the
General Rules of Interpretation and asserted the applicable rule is GRI 1, pursuant to the EN to
GRI 2(b), because the preparation was provided for in one of the headings in the text of 3808.
Therefore, because the presence of a benzene ring was revealed in mefenoxam making it an
aromatic, CBP determined that the fungicide was classified under subheading 3808.92.15,
HTSUS, which provides for fungicides containing any aromatic or modified aromatic fungicide.
Similarly, Gavel 75DF® contains an aromatic due to the presence of a benzene ring. The
EN of Rule 2(b) explains that “Mixtures being preparations described in a heading text are to be
classified under the provisions of Rule 1,” which means that GRI 3 is not applicable to mixtures
which are in and of themselves preparations described in their entirety in a single heading or
subheading. Gavel 75DF® is a fungicide with an aromatic (Zoxamide). Thus, based on the
information presented, the applicable subheading for Gavel 75DF® is 3808.92.15, HTSUS,
which provides for “[f]ungicides: Containing any aromatic or modified aromatic fungicide;
other.
Country of Origin of Gavel 75DF® for Purposes of Section 301 Trade Remedies
The United States Trade Representative (“USTR”) has determined that additional ad
valorem duties will be imposed on certain Chinese imports pursuant to USTR’s authority under
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Section 301(b) of the Trade Act of 1974 (“Section 301 measures”). The Section 301 measures
apply to products of China enumerated in Section XXII, Chapter 99, Subchapter III, U.S. Note
20, Harmonized Tariff Schedule of the United States (“HTSUS”).
When determining the country of origin for purposes of applying current trade remedies
under Section 301, the substantial transformation analysis is applicable. See, e.g., Headquarters
Ruling Letter (“HQ”) H301619, dated November 6, 2018. The test for determining whether a
substantial transformation will occur is whether an article emerges from a process with a new
name, character, or use, different from that possessed by the article prior to processing. See
Texas Instruments, Inc. v. United States, 681 F.2d 778 (C.C.P.A. 1982). This determination is
based on the totality of the evidence. See Nat’l Hand Tool Corp. v. United States, 16 CIT 308
(1992), aff’d, 989 F.2d 1201 (Fed. Cir. 1993). If the manufacturing or combining process is a
minor one which leaves the identity of the article intact, a substantial transformation has not
occurred. See United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940).
In determining whether a substantial transformation occurs in the manufacture of
products from chemicals, Customs has consistently examined whether a chemical reaction occurs
when two chemicals are mixed in the production of the final article. See HQ 555248 dated April
9, 1990. When chemical compounds are mixed together to form a different substance and the
individual properties of each ingredient are no longer discernable, they have undergone a
substantial transformation. See HQ 555989 dated June 24, 1991 (raw materials used to produce
three varieties of antioxidants underwent a substantial transformation).
However, in HQ 561330, dated July 2, 1999, four scenarios were presented to determine
whether a substantial transformation occurred in the processing of insecticides and herbicides.
The first two scenarios concerned a blending process that produced a different grade of the initial
product. CBP determined that the change in grade did not result in a substantial transformation
of the materials. However, in the last two scenarios, an imported material was combined with
another active ingredient which significantly changed the nature of the bulk product because the
effectiveness of the finished product significantly increased. Notably, in the third scenario,
formulation chemistry was used and through the mixture of the two active ingredients, the
finished product's scope of effectiveness was broadened, allowing it to treat more types of plants.
See also HQ 563207, dated June 1, 2005 (due to the increase of effectiveness of the two active
ingredients that could be prescribed, a change in use and character occurred, thus the finished
product qualified as a substantial transformation).
In this case, similar to the cases above, the mixture increases the effectiveness of the
individual active ingredients and expands their application. Both Zoxamide and Mancozeb are
able to be bought and used separately and are specifically selected for their traits for the finished
product, Gavel 75DF®. When Zoxamide is mixed with Mancozeb, the mixture may be used for
more purposes, such as for controlling bunch rot and dead arm on grapes, a use it does not have
before the APIs are mixed. Accordingly, we can conclude that a substantial transformation has
occurred through the mixing of the active ingredients in Indian, making India the country of
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origin of Gavel 75DF®.
Because we find that there is a substantial transformation in India, it is not necessary to
address the additional questions regarding whether segregation is necessary and whether
additional duties are due from China.
HOLDING:
By application of GRIs 1 and 6, Gavel 75DF® is classified under heading 3808,
specifically subheading 3808.92.15, HTSUS. Further, Gavel 75DF® is substantially
transformed through the process that occurs in India. Thus, the country of origin is India, and
Gavel 75DF® is not subject to Section 301 measures.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the
assumption that all of the information furnished in connection with the ruling request and
incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and
complete in every material respect. The application of a ruling letter by [CBP] field office to the
transaction to which it is purported to relate is subject to the verification of the facts incorporated
in the ruling letter, a comparison of the transaction described therein to the actual transaction,
and the satisfaction of any conditions on which the ruling was based.”
A copy of this ruling letter should be attached to the entry documents filed at the time this
merchandise is entered. If the documents have been filed without a copy, this ruling should be
brought to the attention of the CBP officer handling the transaction.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch
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