OT:RR:NC:N3:140
Ms. Kayla Owens
Stein Shostak Shostak Pollack & O'Hara
865 S. Figueroa Street, Suite 1388
Los Angeles, CA 90017
RE: The country of origin of Duo Brow-Pencil and Gel.
Dear Ms. Owens:
In your letter dated February 02, 2020, you requested a country of origin ruling determination on various cosmetic products on behalf of, Elegant Best Investment Limited (“Elegant Best”).
The merchandise under consideration is called the the Duo Brow-Pencil and Gel. The process that is the subject of this ruling is the hot filling and filling process. We note that this issue has been addressed previously in Headquarters Ruling H302820. You provided an outline of the processing and packaging that occurs. You state that this process is used for one item: the duo brow-pencil and gel. For this item, the bulk raw materials are of South Korean origin. The raw material for the pencil and gel is weighed, labeled, and bulk mixed before being put in bulk storage in South Korea. Next, the material is shipped from South Korea to China for assembling and packaging. No additional ingredients are added to the product in China. In China, the material goes through the filling and assembly process as described in Step 1.4 of Exhibit A. The containers are plastic and aluminum, or just aluminum. Next, caps are placed on the containers, and the containers are then batch coded and packaged for retail sale and shipping. This process is similar to the process described in NY J86656 (7/24/03). In that ruling, Customs found that bulk cosmetics consisting of wet/dry powder of U.S. origin that were shipped to China for packing did not undergo a substantial transformation in China; therefore, they remained products of the United States. We also note H302820 which reviewed a similar product and processing.
The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. 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 the meaning of this part.
The courts have held that a substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).
However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). Substantial transformation determinations are based on the totality of the evidence. See Headquarters Ruling (HQ) W968434, date January 17, 2007, citing Ferrostaal Metals Corp. v. United States, 11 CIT 470, 478, 664 F. Supp. 535, 541 (1987).
The mixed and prepared bulk material, extruded, shaped into lead and cut, used to make duo brow and liquid brow pencils, based on the description of processing performed above, does not undergo a change in name, character, or use in China in the process of filling and retail packaging described in your submission. We note that specific product numbers are not identified in your submission. At the time of Entry/Entry Summary you may be requested to verify the information on raw materials, sources or value, etc., for any specific shipment or product.
Based on our review of the processes that occur in South Korea and China, as well as previous Customs rulings cited herein, it is our opinion that the Country of Origin of the Duo Brow Pencil and Gel will be South Korea.
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 Paul Hodgkiss at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division