MAR-2 OT:RR:NC:2:240
Mr. Graham Summerfield
Jackel Group
259 Homestead Road
Hillsborough, NJ 08844
RE: THE COUNTRY OF ORIGIN MARKING OF L’ENVOILEE COSMETIC COMPACT
Dear Mr. Summerfield:
This is in response to your letter dated August 21, 2008 requesting a classification and marking ruling for L'Envoilee cosmetic compact. A sample was submitted with your inquiry for review.
You state that bulk lipstick mass, lip-gloss mass, and eye shadow powder of US origin will be sent to China for processing into retail packages. The lipstick and lip-gloss mass will be heated and poured into make-up pans. The eye shadow powder will be poured and pressed into small metal make-up pans. The one lipstick, one lip-gloss, and two eye shadow make-up pans will be permanently glued into a compact. The filled compact, which measures approximately three and half inches in length by three and half inches in width, contains a mirror on the underside of the lid. A two-sided applicator/brush is placed inside the compact. The compact is inserted into a plastic holder, which is packaged into outer PVC box. The compact is designed for disposal after the consumer has depleted the contents. The compact, applicator/brush, plastic holder, and PVC box are manufactured in China.
Subheading 9801.00.10, 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 that 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 melting, pouring, filling, pressing, and the attachment of the make-up pans to the compacts by gluing or force fitting constitute more than a mere repackaging operation, which advances the value and improves the condition of the merchandise. This combination of processes exceeds the ambit of mere repackaging permissible under subheading 9801.00.10.
The applicable subheading for the L’Envoilee Cosmetic Compact containing the lipstick, lip-gloss, and eye shadow will be 3304.20.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Beauty or make-up preparations and preparations for the care f the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Eye make-up preparations. 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 that 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, the U.S. origin bulk cosmetic mass and powder are sent to China, where they are measured, melted or poured, and compressed into individual metal pans and are incorporated into a compact. While these operations exceed mere packaging for purposes of subheading 9801.00.10, HTSUS, they do not effect any significant change in the character or use of the cosmetic powder or mass for purposes of establishing country of origin. Therefore, it is our determination that the foreign processes do not constitute a substantial transformation and the lipstick, lip-gloss, and eye shadow remain products of the United States. Accordingly, the imported cosmetics are not subject to the country of origin marking requirements of 19 U.S.C. 1304.
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 excepted from marking requirements. The cosmetic compact, filled with lipstick, lip-gloss and, eye shadow in China for export to the U.S., is a non-reusable disposable container. The compact is a non-reusable compact, which is disposed of by the consumer after the contents are depleted. Therefore, as a non-reusable disposable container, the compact is exempt from marking under 19 CFR 134.24(d).
Perfumery, cosmetic, and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which are administered by the U.S. Food and Drug Administration. You may contact them at U.S. Food and Drug Administration, Office of Cosmetics and Colors, 5100 Paint Branch Parkway, College Park, MD 20740-3835, telephone number 301 436-1130.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
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 Stephanie Joseph at 646-733-3268.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division