MAR-2 OT:RR:NC:N2:240
Ms. Carol Robertson
Carmichael International
533 Glendale Blvd.
Los Angles, CA 90026
RE: The Country of Origin Marking of 24k Love Dust Body Powder
Dear Ms. Robertson:
This is in response to your letter dated June 17, 2010, requesting a ruling on behalf of your client Naked Princess Worldwide, LLC.
Bulk iridescent body powder of U.S. origin is sent to China. The bulk body powder is measured and poured into a puff applicator, which is sewn to seal in the powder. The puff is made of woven acrylic fur fabric with a ribbon handle. The puff applicator filled with body powder is placed into a heat-sealed poly bag, packaged in a round retail container, and shrink-wrapped for retail sale. The puff applicator is manufactured in China, the ribbon is manufactured in Switzerland, and the retail container is of U.S. origin. Assembly and packaging processes are performed in China.
Subheading 9801.00.10, Harmonized Tariff Schedule of the United States (HTSUS), provides for the free entry of products of the U.S. that are exported and returned without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1) are met. While some change in the condition of the product while it is abroad is permissible, operations, which either advance the value or improve the condition of the exported product, render it ineligible for duty free entry upon return to the U.S. The foreign processes at issue in the instant case exceed mere repackaging with the result that the merchandise has been advanced in value and/or improved in condition outside the United States. The body powder is ineligible for duty-free entry under subheading 9801.00.10, HTSUS, upon its return to the United States.
The applicable subheading for the 24k Love Dust Body Powder will be 3304.91.0050, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations: Powders, whether or not compressed: Other. The rate of duty will be free.
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.1304), provides that, unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) 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. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product”. Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b) mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain.
"Country of origin" is defined in section 134.1(b), Customs Regulations, 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.
A substantial transformation is said to have occurred when an article emerges from a manufacturing process with a name, character, or use, which differs from the original material subjected to the process. In determining whether the assembly of parts or materials constitutes a substantial transformation, the issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article. By definition, only merchandise which is "of foreign origin”, i.e., of a country of origin other than that of the U.S., is subject to the requirements of 19 U.S.C. 1304. Customs has ruled that products of the U.S. which are exported for further processing and subsequently returned, are not subject to country of origin marking upon importation to the U.S. unless the further processing in the foreign country constituted a substantial transformation of the product.
In this case, bulk body powder from the United States is sent to China, where it is measured and encased inside the powder puff. While this operation exceeds mere packaging for purposes of subheading 9801.00.10, HTSUS, it does not effect any significant change in the character or use of the body powder for purposes of establishing country of origin. Therefore, it is our determination that the foreign processes do not constitute a substantial transformation and the body powder remains a product of the United States. Accordingly, the imported body powder is not subject to the country of origin marking requirements of 19 U.S.C. 1304. See also 19 CFR 134.32(m).
Section 134.24(d) provides that usual disposable containers imported full and used as such at the time of importation shall not be required to be marked to show the country of their origin, but shall be marked to indicate the origin of their contents regardless of the fact that the contents are exempted from marking requirements. You state that the powder puff is not refillable nor are powder refills available for sale. You contend the powder puff would be exempt from marking as a disposable container under CFR 134.24. The powder puff serves as an applicator for the body powder rather than as a container. The retail container consists of the round box in which the powder filled puff is packaged. The powder puff is a product of China. The country of origin of the powder puff should be indicated on the retail box.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 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 Stephanie Joseph at 646-733-3268.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division