CLA-2-33:OT:RR:NC:N3:140
Mr. Akana K. Ma
Buchalter, A Professional Corporation
1331 NW Lovejoy Street
Portland, Oregon 97209
RE: The tariff classification and country of origin of six colors of eyebrow pencils from Italy.
Dear Mr. Ma:
In your letter dated April 19, 2021, and previous request dated March 04, 2021, you requested a tariff classification and country of origin determination ruling, on behalf of your client, Melt Cosmetics, Inc. (“Melt”).
The subject is a prospective import of an eyebrow pencil cosmetic product for commercial sale called the Melt Perfectionist Brow Pencil. It will be imported in 6 different colors.
The Perfectionist Brow Pencil is a cosmetic eyebrow pencil embodied in a round, cylindrical eyebrow pencil with a removable cap (dimensions: 5.75 inch length and 0.25 inch diameter) that allows the user to draw micro fine lines and a more precise drawing of a triangular shape in the eyebrow area of the face.
The six variations of brow pencils under review are as follows:
Ash Blonde = SKU 427001
Auburn = SKU 427002
Neutral Blonde = SKU 427003
Brown = SKU 427004
Dark Brown = SKU 427005
Warm Blonde = SKU 427006
The SKU Numbers for the products were provided by your office in a follow-up email.
The applicable subheading for each of the six brow pencils 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 of 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.
You also requested a country of origin ruling determination on whether the processing performed in Italy constitutes a substantial transformation for country of origin and marking purposes.
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.
When considering a product that may be subject to antidumping, countervailing, or other safeguard measures, the substantial transformation analysis is applied to determine the country of origin. See 19 C.F.R. § 102.0; HQ 563205, dated June 28, 2006; see also Belcrest Linens v. United States, 741 F.2d 1368, 1370-71 (Fed. Cir. 1984) (finding that “the term ‘product of’ at the least includes manufactured articles of such country or area” and that substantial transformation “is essentially the test used…in determining whether an article is a manufacture of a given country”).
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). Based on the information that you supplied each of the six brow pencils indicated above will be country of origin Italy for marking purposes.
A marked sample was not received with your request. We are unable to specifically rule on whether the marking on the pencils is adequate to satisfy the requirements of 19 USC. 1304, without a marked sample or a picture of the actual marking.
If you wish a ruling determination on country of origin for marking purposes, you may open a separate ruling request and submit images or samples with the actual country of origin marking.
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 the World Wide Web at https://hts.usitc.gov/current.
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