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HQ 559829




July 22, 1997

MAR 2-05 RR:TC:SM 559829 KBR

CATEGORY: MARKING

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 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

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