THE COUNTRY OF ORIGIN MARKING OF CANADIAN WHISKEY

N241303 May 21, 2013 MAR-2 OT:RR:NC:2:235 CATEGORY: MARKING Mr. John J. Galvin Galvin & Mlawski 245 Fifth Avenue, Suite 1902 New York, NY 10016 RE: THE COUNTRY OF ORIGIN MARKING OF CANADIAN WHISKEY Dear Mr. Galvin: This is in response to your letter dated April 26, 2013 requesting a ruling on the country of origin for marking purposes of Canadian Whiskies which are only diluted and bottled in the United States. A marked sample was not submitted with your letter for review. The subject imports consists of 119 proof Canadian Mist® and 139 proof Collingwood® blended Canadian whiskey in bulk which after importation are diluted and bottled to not less than 80 proof at BF’s TTB registered facilities. Canadian Mist® is a blended Canadian whiskey produced by Canadian Mist Distillers Limited at its distillery in Collingwood, Ontario. The product is distilled from a grain mash of corn, rye and malted barley using a continuous distillation process. All of the corn used is currently grown within 100 miles of the distillery; the rye is also grown in Ontario and the barley malt is shipped in from various locations. The corn is ground, mixed with water and spent stillage then mashed to extract the grain's starches which lend the light taste to the finished whisky. Once the mash cools, ground malt barley is added in order to convert the starch to sugar. Yeast is added to begin the fermentation process during which the sugars are converted to alcohol and flavor adding congeners. The fermented grain mash is distilled. The vaporized whisky is then condensed to produce a 189 proof product. The whisky is mixed with water and steam, removing some of the congeners but not all as there is a certain amount of the flavoring compounds needed to capture the desired flavors of Canadian Mist®. At this point, the whisky is diluted with water to 154 proof and barreled for aging. Both whiskeys are subjected to various aging and flavoring processes in Canada to create the finished product. After importation, (into the United States) both the Canadian Mist® and Collingwood® blended Canadian whiskies are reduced to not less than 80 proof by dilution with water and bottled at BF’s TTB registered facilities in Kentucky. 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 134.45(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.” 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. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. 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. 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. 103182, 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 of the Customs Regulations. The marking requirements of these goods are set forth in Part 134 of the Regulations. Since "Canada" is defined under 19 CFR 134.1(g), as a NAFTA country, the NAFTA Marking Rules must be applied in order to determine whether each of the imported over proof bulk whiskies is a "good of a NAFTA country" and, thus, subject to the NAFTA marking requirements. 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. Based on all applicable laws and precedence, we agree with your determination that the Whiskies described above are Canadian goods for country of origin marking purposes. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181). 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 Paul Hodgkiss at (646) 733-3046. Sincerely, Thomas J. Russo Director National Commodity Specialist Division