MAR-2 OT:RR:NC:2:240
Mr. Bill Wratschko
Customs Clearance International, Inc.
19300 S. Hamilton Avenue - Suite 190
Gardena, CA 90248
RE: THE COUNTRY OF ORIGIN MARKING OF NAIL POLISH
Dear Mr. Wratschko:
This is in response to your letter dated August 3, 2011, requesting a ruling on behalf of your client Nousvo, Inc. on whether the proposed marking “Made in Vietnam” is an acceptable country of origin marking for imported nail polish. A marked sample was not submitted with your letter for review.
You state that your client Nousvo, Inc. will export nail lacquer base of US origin to Vietnam, where it will be combined with colorants and other essential ingredients to produce a proprietary nail polish formulation. The nail polish will be poured into retail bottles and exported to the US.
The applicable subheading for the nail polish will be 3304.30.0000, 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 sun tan preparations; manicure or pedicure preparations: Manicure or pedicure preparations. The rate of duty will be free.
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.
“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. The nail lacquer base of US origin is further manufactured in Vietnam with colorants and other essential ingredients to produce a proprietary formulation of the finished nail polish. The nail lacquer base has undergone a substantial transformation in Vietnam; therefore, the country of origin of the retail bottle of nail polish will be Vietnam. The proposed marking “Made in Vietnam”, as described above, meets the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
Perfumery, cosmetic, and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which is 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.
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