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NY N008640




April 20, 2007

CLA-2-38:RR:E:NC:SP:237

CATEGORY: MARKING

TARIFF NO.: 3802.90.1000

Mr. Jorge Alberto Torres
Interlink Trade Services
9100 Austin Drive, Suite 1
Pharr, Texas 78577

RE: The Tariff classification and country of origin marking under the North American Free Trade Agreement for bone black from Mexico.

Dear Mr. Torres:

In your letter dated March 3, 2007, on behalf of Brimac Carbon Services, you requested a tariff classification and country of origin marking ruling under the North American Free Trade Agreement (NAFTA). The product is described as natural charcoal (animal bone black) made from crushed cow or horse bone that is carbonized without air at a temperature between 450 to 1000 degrees centigrade in Mexico. The product will be imported in sacks for use in the sugar refining and water purification and effluent industries.

Under the first scenario, crushed cow or horse bone (heading 0506) sourced in North America (Mexico, United States and Canada) will be carbonized without air at a temperature between 450 and 1000 degrees centigrade in Mexico and transformed into bone black (heading 3802).

Under the second scenario crushed cow or horse bone (heading 0506) sourced in North America (Mexico, United States and Canada) and potentially Pakistan and India will be carbonized without air at a temperature between 450 and 1000 degrees centigrade in Mexico and transformed into bone black (heading 3802).

The applicable subheading for the animal bone black will be 3802.90.1000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for bone black. The rate of duty will be 5.8 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

Articles classifiable under subheading 3802.90.000, HTSUS) may be eligible for NAFTA preferential duty treatment upon compliance with all applicable laws, regulations, and agreements.

Pursuant to General Note 12, HTSUS, for an article to be eligible for NAFTA preference, two criteria must be satisfied. Firstly, the article in question must be "originating" under the terms of that General Note 12(b), HTSUS, and secondly, the article must qualify to be marked as a good of a NAFTA country under the NAFTA Marking Rules contained in Part 102 of the CBP Regulations.

General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

(iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the nonoriginating materials falling under provisions for "parts" and used in the production of such goods does not undergo a change in tariff classification because--

(A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or

(B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts,
provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note.

Based on the information provided, the product described above under the first scenario will meet the requirements of HTSUS General Note 12(b)(iii), namely they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials. The crushed cow or horse bone (heading 0506) sourced in North America (Mexico, United States and Canada) will be carbonized in Mexico and transformed into bone black (heading 3802).

Based on the information provided, the product described above under the second scenario will meet the requirements of HTSUS General Note 12(b)(ii)(A), namely they have been transformed in the territory of Canada, Mexico and/or the United States so that, except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein. General Note 12(t): requires: "A change to heading 3802.10 through 3802.90 from any other heading. The crushed cow or horse bone (heading 0506) sourced in North America (Mexico, United States and Canada) and potentially Pakistan and India will be carbonized and transformed into bone black (heading 3802).

Part 102 of the Customs Regulations (19 CFR 102), sets forth the NAFTA Marking Rules for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 sets forth a hierarchy for determining the country of origin of imported goods.

Section 102.11(a) of this section states that the country of origin of a good is the country in which:

(1) The good is wholly obtained or produced; The good is produced exclusively from domestic materials; or 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 applicable requirements of these rules are satisfied.

A "foreign material" is defined in section 102.1(e), Customs Regulations (19 CFR 102.1(e)), as "a material whose country of origin as determined under these rules is not the same country as the country in which the good is produced."

Based on the information provided, the goods described above are neither "wholly obtained or produced," nor "produced exclusively from domestic materials." Therefore, for purposes of determining the origin of the imported good, section 102.11(a)(3) is the applicable rule that next must be applied. Under this rule, the country of origin of a good is the country in which each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20.

Section 102.20(f) requires: "A change to heading 3802 through 3805 from any other heading, including another heading within that group. Under both scenarios described above, the crushed cow or horse bone (heading 0506) will be carbonized in Mexico and transformed into bone black (heading 3802).

Based on the information provided under both scenarios described above, the product will qualify for NAFTA preferential treatment. In both cases, the country of origin for Customs duty and marking purposes will be Mexico. The sacks of bone black may be marked “Made in Mexico” or “Product of Mexico”.

This product may be subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by contacting the FDA at 5600 Fishers Lane, Rockville, Maryland 20857, by telephone at (301) 575-0156, or by visiting their website at www.fda.gov/oc/bioterrorism/bioact.html.

This product may be subject to the rules and regulations of the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture. Information on the APHIS Products Program can be obtained by contacting APHIS at 4700 River Road, Unit 40, Riverdale, Maryland 20737-1231, by telephone at (301) 734-3277, or by visiting their website at www.aphis.usda.gov.

This product may be subject to the requirements of the Toxic Substances Control Act (TSCA), which are administered by the U.S. Environmental Protection Agency. Information on the TSCA can be obtained by contacting the EPA at 401 M Street, S.W., Washington, D.C. 20460, by telephone at (202) 554-1404, or by visiting their website at www.epa.gov.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this product is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.

Sincerely,


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