N332534
OT:RR:NC:N3:140
Ms. Kayla Owens
Stein Shostak Shostak Pollack and O'Hara
865 S. Figueroa Street, Suite 1388
Los Angeles, CA 90017
RE: The country of origin of a 3-in-1 brow pen
Dear Ms. Owens:
In your letter dated April 27th, 2023 you requested a country of origin ruling and marking determination for a 3-in-1 brow pen on behalf of Elegant Best Investment Limited (“Elegant Best”).
The merchandise under consideration is a 3-in-1 brow pen. You state that the raw materials for the bulk material originate in multiple countries. You have included raw material lists for the product showing that no single country produced the majority of the raw material for the bulk product. The processes that are the subject of this ruling are the extrusion, filling and hot filling process, and packaging process. Processing in South Korea is described as follows. The raw materials are assembled, weighed and stored in South Korea, then bulk mixed, and prepared, before being put into bulk storage in South Korea. The mixed and prepared product in bulk storage, is shipped from South Korea to China. No additional ingredients are added to the (bulk) product in China. In China, the bulk product is placed in hot filling machinery, retail containers are filled with the product, the case and brush are assembled, labeled, placed in individual wrap then packaged in retail boxes. All packaging is of Chinese origin. An image of the product was sent with your request. For purposes of this ruling, the packaging is assumed to be disposed of after the cosmetic is used up.
Images that you supplied of the container shows a cosmetic in pencil form. You state that the container is made of plastic/aluminum and plastic. The 3-in-1 brow pen, appears to be in retail packaging.
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 USC 1304.
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 test for determining whether a substantial transformation will occur is whether an article emerges from a process with a new name, character or use, different from that possessed by the article prior to processing. See Texas Instruments Inc. v. United States, 69 C.C.P.A. 151 (1982); 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).
It is your opinion that the country of origin for this product will be South Korea. We agree.
The method of processing in South Korea involved mixing and blending and processing of the raw ingredients, taking both foreign and domestic inputs to create the bulk cosmetic, which resulted in a substantial transformation of the raw materials.
The mixed and prepared cosmetic bulk material 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.
It is our opinion that the country of origin for marking purposes of the 3-in-1 brow pen, will be South Korea.
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, please contact National Import Specialist Evan Thomas at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division