MAR 2-05 RR:TC:SM 559829 KBR
Michael P. Maxwell
10100 Santa Monica Boulevard, Suite 300
Los Angeles, CA 90067
RE: Country of Origin of Fetal Bovine Blood, NAFTA
Dear Mr. Maxwell:
This is in response to your letter on behalf of your client
PAA Laboratories Inc., to U.S. Customs Service, New York, dated
April 19, 1996, and subsequently forwarded to this office,
concerning the country of origin of fetal bovine blood imported
from Mexico and processed in the U.S. We apologize for the delay
in responding.
FACTS:
You state that PAA Laboratories Inc. ("PAA") purchases fetal
bovine blood which is produced in Mexico. The blood is recovered
from slaughterhouses in Mexico and frozen in 3.5 liter containers
and imported into the U.S. The cattle which are slaughtered are
born and raised in Mexico and the U.S. After importation into
the U.S., the blood is thawed and processed in a centrifuge to
separate the hemoglobin from the blood plasma (serum). The serum
is passed through a series of filters and purified to 0.1
filtration which is considered sterile, and rebottled. During
the processing, the serum is continually tested for viral
contamination. The serum is purchased by laboratories which
further process the serum to create a medium suitable for tissue
and cell growth.
ISSUE:
What is the country of origin of the fetal bovine blood and
processed serum?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), provides that unless excepted, every article of foreign
origin 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. Congressional intent in
enacting 19 U.S.C. 1304 was "that the ultimate purchaser should
be able to know by an inspection of the marking on the imported
goods the country of which the goods is the product. The evident
purpose is to mark the goods so that at the time of purchase the
ultimate purchaser may, by knowing where the goods were produced,
be able to buy or refuse to buy them, if such marking should
influence his will." United States v. Friedlander & Co., 27
C.C.P.A. 297 at 302; C.A.D. 104 (1940). Part 134, Customs
Regulations (19 CFR Part 134), implements the country of origin
marking requirements and exceptions of 19 U.S.C. 1304.
Section 134.1(b) of the regulations defines "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 this part; however, for a good
of a NAFTA country, the NAFTA marking rules
will determine the country of origin.
(Emphasis added).
Section 134.1(g) of the regulations, defines a "good of a
NAFTA country" as an article for which the country of origin is
Canada, Mexico, or the U.S. as determined under the NAFTA marking
rules. The NAFTA marking rules are set forth in 19 CFR Part 102,
as amended.
Section 134.35(b), provides that:
A good of a NAFTA country which is to be
processed in a manner that would result in the
good becoming a good of the United States under
the NAFTA Marking Rules is excepted from
marking. Unless the good is processed by the
importer or on its behalf, the outermost
container of the good shall be marked in accord
with this part.
Section 102.11, Customs Regulations ("Marking Rules")(19 CFR
102.11) sets forth the required hierarchy for determining
country of origin for marking purposes. Section 102.11(a) of the
regulations states that "[t]he country of origin of a good is the
country in which:
(1) The good is wholly obtained or produced;
(2) The good is produced exclusively from domestic
materials; or
(3) Each foreign material incorporated in that good
undergoes an applicable change in tariff classification
set out in section 102.20 and satisfies any other
applicable requirements of that section, and all other
requirements of these rules are satisfied."
Since the fetal bovine blood serum is neither wholly
obtained or produced in a single country nor produced exclusively
from domestic materials, 102.11(a)(1) and (2) are not
applicable. Therefore, it must be determined whether pursuant
to 102.11(a)(3), the foreign materials incorporated into the
serum meet the specific tariff rule of 102.20. The cattle are
originally from the U.S. and Mexico, and slaughtered in Mexico
and the blood recovered. Cattle are classified within heading
0102, HTSUS (Harmonized Tariff System of the United States)
("live bovine animals"). Customs has determined that the raw
blood is classified under subheading 0511.99.4050, HTSUS (Animal
products not elsewhere specified or included; dead animals of
chapter 1 or 3, unfit for human consumption: Other: Other).
Thus, the specific tariff rule for the blood is set out in
section 102.20(a) (Section I: Chapters 1 through 5) of the
regulations, which states: "A change to heading 0501 through
0511 from any other chapter." The cattle and blood fall in
different chapters (chapter 5 and chapter 1). Therefore, the
blood meets the necessary tariff shift, and is a product of
Mexico.
After processing in the U.S., the finished serum is of U.S.
origin. The finished serum will be classified within heading
3002, HTSUS, animal blood prepared for therapeutic, prophylactic
or diagnostic use. Thus, the specific tariff rule for these
goods is set out in section 102.20(f) (Section VI: Chapters 28
through 38) of the regulations, which states: "A change to
subheading 3002.10 through 3002.90 from any other subheading,
including another subheading within that group." The unprocessed
blood imported into the U.S. falls within a different subheading
than the processed serum, subheading 0511.99.4050, HTSUS.
Therefore, the serum meets the necessary tariff shift and becomes
a product of the U.S. and is excepted from country of origin
marking.
However, you should be aware that although Customs has
determined that the serum is a product of the U.S., this ruling
does not address whether the serum may be marked with the U.S.A.
symbol. The determination of whether a good may be marked "Made
in USA" under any circumstances is under the primary jurisdiction
of the Federal Trade Commission and not this Service. We
therefore recommend that you contact the Federal Trade
Commission, Division of Enforcement, located at 6th and
Pennsylvania Avenue, N.W., Washington, D.C. 20580, for any views
concerning marking a product which is of U.S. origin with the
"USA" symbol.
HOLDING:
Based on the information submitted, after processing, the
fetal bovine blood serum is a product of the U.S. and is excepted
from country of origin marking.
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 Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division