CLA-2-32:OT:RR:NC:2:238
Mr. Steve Homokay
Livingston International
670 Young Street
Tonawanda, NY 14150
RE: The tariff classification and country of origin marking of D2290 US Grape Food Coloring from Canada
Dear Mr. Homokay:
In your letter dated January 31, 2011, on behalf of your client, Sensient Colors Canada “Sensient”), you requested a tariff classification and country of origin marking ruling.
The subject merchandise, D2290 US Grape Food Coloring, is described as a blend of U.S. Certified Food Colors and a diluent. Specifically, the product contains FDC Red #40 Spray-Dried Triple Grind and FDC Blue #1 (together 85%), and sodium sulfate (15%) as the diluent. FDC Red #40 and FDC Blue #1 are acid dyes. Both dyes are manufactured in the United States by Sensient’s parent company, Sensient Colors. They are imported into Canada where they are blended. Sodium sulfate is added as a diluent with no dyeing properties of its own.
The applicable subheading for the D2290 US Grape Food Coloring will be 3204.12.4500, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Synthetic organic coloring matter and preparations based thereon as specified in note 3 to this chapter: Acid dyes, whether or not premetallized, and preparations based thereon; mordant dyes and preparations based thereon: Other: Products described in additional U.S. note 3 to section VI.” The rate of duty will be 6.5 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/.
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. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations. 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(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. 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 United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish. Part 102 of the regulations, 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 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this situation, we cite the chemical reaction origin rule found in Note 1, Section 102.20(f) which states the following: “Any good of Chapters 28, 29, 31, 32 or 38, except a good of heading 3823, that is the product of a chemical reaction shall be considered to be a good of the country in which the reaction occurred. A chemical reaction is defined as a process in which chemical bonds in molecules are broken and new chemical bonds are formed between the fragmented molecules and/or added elements so that one or more of the original bonds no longer link the same chemical element/s or functional group/s. Notwithstanding any of the line-by-line rules, the “chemical reaction” rule may be applied to any good classified in the above chapters.”
Based on the foregoing, we find that the imported D2290 US Grape Food Coloring is a good of the United States for marking purposes.
Inasmuch as the marking requirements of 19 U.S.C. 1304 are applicable only to articles of "foreign origin," the subject dye is not required to be marked upon importation into the United States. However, we note that a claim of domestic origin is a matter under the jurisdiction of the Federal Trade Commission (FTC). Therefore, should you wish to mark the articles with the phrase "Made in the USA," we recommend that you contact that agency at the following address: Federal Trade Commission, Division of Enforcement, 600 Pennsylvania Avenue, NW Washington, DC 20580.
This merchandise may be subject to the Federal Food, Drug, and Cosmetic Act and/or The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which are administered by the U.S. Food and Drug Administration (FDA). Information on the Federal Food, Drug, and Cosmetic Act, as well as The Bioterrorism Act, can be obtained by calling the FDA at 1-888-463-6332, or by visiting their website at www.fda.gov.
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
Director
National Commodity Specialist Division