CLA-2: RR:TC:SM 559981 BLS
Ms. Tania Balog
Ranko Balog Co.
8924 Bellanca Avenue
Los Angeles, CA 90045-4700
RE: Eligibility of eyelash curler kit for preferential duty
treatment under NAFTA;
country of origin marking; sets; GRI 3(b); subheading
9615.90.20; Article 509
Dear Ms. Balog:
This is in reference to your letter dated September 11,
1996, requesting whether an eyelash curling system is eligible
for preferential treatment under the North American Free Trade
Agreement (NAFTA) upon return from Mexico, and the country of
origin marking requirements for such product. You also inquire
as to the tariff classification of the kit, and whether it will
qualify for duty-free treatment under subheading 9802.00.50,
Harmonized Tariff Schedule of the United States (HTSUS).
The kit consists of various items, including an eyelash
curler, heating unit, cosmetics, and an instruction sheet. The
eyelash curler is produced in Taiwan, and then shipped to Mexico
for inclusion in the kit.
Items sent to Mexico from the U.S. will include:
1. Injection molded shell
2. PC Boards
3. Electronic components for the PC board.
4. Lead wires.
5. Battery clips.
6. LED light.
7. Mascara and eyelash oil.
8. Instruction sheet.
9. Possible packaging box.
For the purposes of this ruling, we will assume from these
facts that the foregoing items are of U.S.-origin.
In Mexico, processing will be as follows:
1. Assembly of small circuitry components onto a PC board.
2. Assembly of the finished PC board, battery clips, LED
light lead wires and
screws into the product housing shell.
3. Final assembly of the heating unit.
4. Placement of the eyelash curler into the specially
molded opening in the heating unit, and
packaging of the unit, curler, U.S.-origin cosmetics and
instruction sheet into the shipping box.
1) What will be the proper classification of the "Hot
Lashes" curling system upon importation into the U.S.?
2) What are the country of origin marking requirements for
the imported kit?
3) Whether the product will be eligible for preferential
treatment under the NAFTA upon importation.
4) Whether the "Hot Lashes" system will be eligible for
duty-free treatment under subheading 9802.00.50, HTSUS, upon
LAW AND ANALYSIS:
According to the information provided, upon importation into
the U.S. the eyelash curling system will consist of an eyelash
curler with incorporated silicon pad,
a heart-shaped plastic housing unit, specifically molded to fit
the eyelash curler and heat the silicone pad of the eyelash
curler, and a retail-sized, separately packaged mascara and
eyelash night oil. The package also contains an instruction
Inasmuch as the imported article is described by more than
two headings, it
cannot be classified according to GRI 1, HTSUS. Classification
of goods consisting of more than one material or substance shall
be according to the principles of GRI 3. GRI 3(a) is
inapplicable because none of the relevant headings, namely 9615,
8516 and 3304, provide a specific description but each refers to
only part of the items. The eyelash curling system is not a
composite good because it fails to "form a whole which would not
normally be offered for sale in separate parts." See EN (IX) GRI
We consider the "Hot Lashes" system to be a set under GRI
3(b), because it consists of different articles that are put up
together for the care and beautification of eyelashes in a
retail-sized package for direct sale to the consumer. GRI 3(b),
HTSUS, provides in part that the goods put up in sets for retail
sale, which cannot be classified by reference to GRI 3(a), shall
be classified as if they consisted of the component which gives
them their essential character. The eyelash curler, by itself,
is classifiable as a nonthermic, nonornamental device for curling
the hair. See Headquarters Ruling Letter (HRL) 955840 dated
March 1, 1994. The eyelash curler is the component which gives
the set its essential character because of its role in relation
to the use of the other items of the set, such as the battery-operated heating unit, eye mascara and eyelash oil. Without the
eyelash curler, the eyelashes cannot be curled and the heating
unit becomes meaningless to the set. As such, the set takes on
the classification of the eyelash curler.
The applicable subheading for the "Hot Lashes" curling
system is subheading 9615.90.20, HTSUS, the provision for
"[C]ombs, hair-slides and the like; hairpins, curling pins,
curling grips, hair-curlers and the like, other than those of
heading 8516, and parts thereof; [o]ther: [n]onthermic,
nonornamental devices for curling the hair." The rate of duty
under general column one is 8.1 percent ad valorem and the
special column rate for goods of Mexico qualifying for NAFTA is a
free rate of duty.
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B. NAFTA Preference
To be eligible for preferential treatment under the NAFTA,
goods must be "originating goods" within the rules of origin in
General Note 12(b), HTSUS.
General Note 12(b), HTSUS, states in pertinent part:
[f]or the purposes of this note, goods imported into
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
territory of a NAFTA party" only if--
(i) they are goods wholly obtained or
in the territory of Canada, Mexico, and/or the
United States; or
(ii) they have been transformed in the territory
Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this
note, each of the non-originating
used in the production of such goods
a change in tariff classification
subdivisions (r), (s) and (t) of this
the rules set forth therein, or
(B) the goods otherwise satisfy the applicable
requirements of subdivisions (r), (s)
where no change in tariff
required, and the goods satisfy all
requirements of this note...
Since the eyelash curler is considered a non-originating
material, we must examine whether this component of the set
undergoes the required transformation in Mexico pursuant to
General Note 12(b)(ii)(A), HTSUS.
In this regard, both the non-originating eyelash curler and
the imported "Hot Lashes" set are classified under subheading
9615.90.20, HTSUS. The rule applicable
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to goods of subheading 9615.90.20, HTSUS, is provided for in
General Note 12(t)/96.15--12(t)97, HTSUS, which provides, in
pertinent part, the following:
"16. A change to subheading 9615.90 from any other
Since the non-originating eyelash curler does not
undergo the required transformation, the imported set will not
qualify for NAFTA Preference upon importation.
C) Country of Origin Marking
The marking statute, section 304 of the 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 United States shall be marked in a
conspicuous place as legibly, indelibly, and permanently as the
nature of the article will permit, in such a manner as to
indicate to the ultimate purchaser in the United States the
English name of the country of origin of the article. Part 134,
(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 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 regulations set forth in 19
CFR Parts 102, 134.
Section 134.1(b) (19 CFR 134.1(b)) of the regulations
defines "country of origin" as:
The country of manufacture, production, or
of any article of foreign origin entering
Further work or material added to an
article in another
country must effect a substantial
order to render such other country the
origin"; however, for a good of a NAFTA
country, the NAFTA
Marking Rules will determine the country
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Section 134.1(j) provides that the "NAFTA Marking Rules" are
promulgated for purposes of determining whether a good is a good
of a NAFTA country. Section 134.1(g) 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
Part 102 of the regulations (19 CFR Part 102), sets forth
the "NAFTA Marking Rules" for purposes of determining whether a
good is a good of a NAFTA country. Section 102.11 of the
regulations (19 CFR 102.11) sets forth the required
hierarchy for determining country of origin for marking purposes.
Section 102.11(a) provides 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
(3) Each foreign material incorporated in that good
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."
"Foreign Material" is defined in section 102.1(e) of the
regulations 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
In this regard, we find that the heating unit, classifiable
under subheading 8516.32, HTSUS ([E]lectric instantaneous or
storage water heaters and immersion heaters, ...electrothermic
hair dressing apparatus...Other hairdressing apparatus), is
considered a product of Mexico, as the U.S.-origin components
which are assembled in Mexico undergo the required tariff shift
pursuant to the applicable rule, which requires "A change to
subheading 8516.10 through 8516.79 from any other subheading,
including another subheading within that group." See section
102.20(o), Section XVI: Chapters 84 through 85. The eyelash
curler is a product of Taiwan, and, as stated, the cosmetics
included with the kit are of U.S.-origin.
Since the "Hot Lashes" set is neither wholly obtained or
produced, nor produced exclusively from domestic (Mexican)
materials, section 102.11(a)(3) is the applicable
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rule which must first be applied. In order to determine whether
Mexico is the
country of origin under this rule, we must lo ok at those
materials whose country of origin is other than Mexico, which
includes material of U.S-origin ("Foreign Material" under 19 CFR
As the set is classified under subheading 9615.90.20, HTSUS,
the change in tariff classification must be made in accordance
with the applicable rule set forth in section 102.20(s), Customs
Regulations (19 CFR 102.20(s)), Section XX: Chapters 94
through 96. This rule provides as follows:
A change to subheading 9615.11 through 9615.90,
another subheading within that group.
Since the "Hot Lashes" set includes the eyelash curler which
is classified under subheading 9615.90, HTSUS, and which
therefore does not undergo a tariff shift, the country of origin
cannot be determined under 19 CFR 102.11(a)(3). Furthermore,
since the eyelash curler and U.S. cosmetics are merely packaged
together for importation without more than minor processing, they
will not be considered to have met the applicable change in
tariff classification set out in 19 CFR 102.20. See 19 CFR
102.17. Section 102.11(b) cannot be used to determine origin
since it is not applicable to "sets" classified as such under the
Where the country of origin cannot be determined under 19
CFR 102.11(a) or (b), and the article is specifically described
in the Harmonized System as a set or mixture, or classified as a
set, mixture or composite good pursuant to GRI 3, 19 CFR
102.11(c) is the rule which must then be applied. Under this
rule, the country of origin is the country or countries of origin
of all materials that merit equal consideration for determining
the essential character of the good. All of the components of
the set, foreign and domestic, which merit equal consideration,
must be considered. In this case, the eye lash curler, heating
unit, eye mascara and eyelash oil merit equal consideration in
determining the essential character of the "Hot Lashes" kit.
Therefore, the country of origin of the kit is the countries of
origin of these components, i.e., Taiwan, Mexico and the U.S.
However, since the components from the U.S. are not required to
be marked under 19 U.S.C. 1304, the U.S. is not required to
appear on the country of origin marking of the set.
Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d),
Customs Regulations (19 CFR 134.32(d)), an exception from
individual marking is applicable
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where the marking of the container of an imported article will
reasonably indicate the origin of the article. This exception is
normally applied in cases where the imported article(s) is
imported in a properly marked container and the ultimate
purchaser in the U.S. will receive it in its original marked
container. Accordingly, provided the purchaser at retail
receives the "Hot Lashes" kit in the kit box properly marked with
the countries of origin, 19 CFR 134.32(d) will be applicable and
the individual items
within the kit will not require country of origin marking.
D) Subheading 9802.00.50
Articles exported from and returned to the U.S., after
having been advanced in value or improved in condition by repairs
or alterations in Mexico, may qualify for a duty exemption under
HTSUS subheading 9802.00.50, provided the foreign operation does
not destroy the identity of the exported articles or create new
or commercially different articles through a process of
manufacture. See A.F. Burstrom v. United States, 44 CCPA 27,
C.A.D. 631 (1956), aff'g C.D. 1752, 36 Cust. Ct. 46 (1956);
Guardian Industries Corp. V. United States, 3 CIT 9 (1982).
Articles are entitled to this duty exemption provided the
documentary requirements of section 181.64, Customs Regulations
(19 CFR 181.64) are met.
"Repairs or alterations" for purposes of 19 CFR 181.64 are
defined as follows:
... restoration, addition, renovation, redyeing,
resterilizing, or other treatment which does not
essential characteristics of, or create a new or
different good from, the good exported from the
The "Hot Lashes" kit in the instant case does not qualify
for the duty exemption under subheading 9802.00.50, HTSUS, as the
components exported from the U.S. either lose their identity
during the assembly process, or are subject only to packaging
operations, and therefore do not undergo "repairs or
alterations." However, pursuant to subheading 9801.00.10, HTSUS
(which provides for duty free entry of U.S. goods exported and
returned without having been advanced in value or improved in
condition by any process of manufacture or other means while
abroad), the U.S.-origin cosmetics merely packaged with the kit
will be entitled to duty-free entry provided the documentary
requirements of section 10.1, Customs Regulations (19 CFR 10.1)
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Based on the information submitted:
1) The "Hot Lashes" curling system is properly classifiable
under subheading 9615.90.20, HTSUS, the provision for "[C]ombs,
hair-slides and the like; hairpins,
curling pins, curling grips, hair-curlers and the like, other
than those of heading 8516, and parts thereof; [o]ther:
[n]onthermic, nonornamental devices for curling the hair."
2) The eyelash curler imported into Mexico from Taiwan is
not transformed in Mexico into an originating good pursuant to
General Note 12(b)(ii)(A), HTSUS. Therefore, the imported "Hot
Lashes" system will not be eligible for preferential treatment
under the NAFTA, when imported into the U.S.
3) Section 102.11(c) of the NAFTA Marking Rules (19 CFR
102.11(c)), is the applicable rule in the hierarchy that must be
applied to determine the country (or countries) of origin of the
imported set. Since the eye lash curler, heating unit, eye
mascara and eyelash oil merit equal consideration in determining
the essential character of the kit, the country of origin of the
set is the countries of origin of these components, i.e., Taiwan,
Mexico and the U.S. However, since the components from the U.S.
are not covered by 19 U.S.C. 1304, only Taiwan and Mexico are
required to appear on the country of origin marking of the set.
The Customs Service, however, has no objection to the U.S. also
appearing among the countries of origin identified on the set.
Provided the purchaser at retail receives the "Hot Lashes"
kit in a box properly marked with the countries of origin, an
exception to the individual marking requirements will be
applicable and the individual items within the kit will not
require country of origin marking. See 19 U.S.C. 1304(a)(3)(D)
and 19 CFR 134.32(d)).
4) The "Hot Lashes" system does not qualify for the duty
exemption under subheading 9802.00.50, HTSUS, as the components
exported from the U.S. either lose their identity during the
assembly process, or are subject only to packaging operations,
and therefore do not undergo "repairs or alterations." However,
pursuant to subheading 9801.00.10, HTSUS, the U.S.-origin
cosmetics not advanced in value or improved in condition abroad
and which undergo only packaging operations will
be entitled to duty-free entry provided the documentary
requirements of section 10.1, Customs Regulations (19 CFR 10.1)
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
Classification Appeals Division