MAR-2: CO:R:C:S 559073 BLS
Paul S. Anderson, Esq.
Sonnenberg & Anderson
200 South Wacker Drive
Chicago, Illinois 60606
RE: Country of origin marking requirements for disposable containers of cosmetics;
19 CFR 134.24; 19 CFR 134.46; HRLs 731863, 734399
Dear Mr. Anderson:
This is in reference to your letters dated March 6 and May 9, 1995, on behalf of Maybelline, Inc., requesting a ruling concerning the country of origin marking requirements for imported containers to be filled with Maybelline cosmetics in the U.S.
FACTS:
Maybelline is a domestic manufacturer of women's cosmetics. Many of the containers in which the cosmetics are sold are imported into the U.S. to be filled with Maybelline's cosmetics, which are manufactured in the U.S. Maybelline imports a variety of empty mascara, lipstick, coverstick, pressed powder and similar containers from Mexico, Indonesia, South Korea, and the People's Republic of China ("China") into the U.S. None of the imported containers are designed to be reusable or refilled.
The disposable containers imported by Maybelline consist of bottles or cases, and in many instances also contain components which assist in the application of the particular cosmetic product. Therefore, the container imported for Maybelline mascara products includes a wiper and a brush, which are assembled as a part of the container. Similarly, the compact container also possesses a mirror, and the lipstick container includes both a swivel base and a tube cover.
The containers to be filled with Maybelline mascara products are assembled in Mexico from Mexican and U.S. component parts. These component parts consist of the bottle section, a plastic wiper, a metal ring for the wiper, and a brush cap which screws onto the bottom of the tube bottle. In the majority of cases, the bottom section, the plastic wiper section, and brush cap stem are made in Mexico. The remaining components, including a metal portion of the wiper and the brush component, are made in the U.S., then sent to Mexico for assembly. After assembly, the brush cannot be separated from the cap. The entire container is designed to be discarded
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after the contents are depleted.
The lipstick and identical coverstick containers are imported from Mexico, China or Indonesia. Those containers which are imported from Mexico consist of components originating in the U.S. and Mexico, which are then assembled in Mexico. The components include the tube base, tube cover, swivel base, metal shells and metal collars. In most cases, the cover and swivel bases are made in Mexico and the metal shells and collars are made in the U.S. for assembly with the swivel base in Mexico. Unlike the lipstick containers imported from Mexico, those containers imported from China and Indonesia are fully produced and assembled there.
The compacts in which Maybelline eye shadow or pressed powder will be filled are made in Mexico or Indonesia. (We assume by this description that none of the component parts are of U.S. origin.) In general, the compacts consist of a plastic bottom and lid which are hinged together. The top portion of these compacts includes a mirror, and the bottom contains a cavity in which a tray or trays of eye shadow or pressed powder will be glued.
You state that pursuant to regulations issued by the Food and Drug Administration, cosmetic products are to be clearly marked with the cosmetic manufacturer's name and address. Consequently, the imported containers normally contain Maybelline's name and U.S. address on the bottom of the container. This information is either engraved directly onto the bottom of the container, or is placed thereon with an adhesive label. In those instances where the container does not have Maybelline's address at the time of importation, an adhesive label or other similar device will be attached when the container is filled with the U.S. product subsequent to importation.
The containers which are later filled are not individually marked with the country of origin in which they are made. However, the outer packing containers in which they are imported in bulk identify the country of origin. After the containers are imported into the U.S., they are filled by Maybelline with the appropriate cosmetic product. Some of the filled containers are blister packed with a blister card containing the following information: "Maybelline Sales, Inc., Memphis, TN 38112; Made in U.S.A., Printed in U.S.A." Some of the filled containers are blister packed, but without a blister card. In those instances, the bottle contains the U.S. address
of Maybelline Sales, Inc., but does not contain either "Made in U.S.A." or "Printed in U.S.A." markings. The containers are not designed to be reused or refilled. Maybelline does not sell refills for the mascara, lipstick, coverstick, or pressed powder.
ISSUES:
What are the country of origin marking requirements for the imported containers?
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LAW AND ANALYSIS:
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 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 U.S.C. 1304.
Section 10.22 of the Customs Regulations (19 CFR 10.22) provides that assembled articles entitled to the exemption under subheading 9802.00.80, Harmonized Tariff Schedule of the United States (HTSUS), are considered products of the country of assembly for purposes of the country of origin marking requirements of section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304).
From a description of the operations performed abroad, it appears that the containers imported from Mexico of U.S. and Mexican parts may be entitled to the partial duty exemption under subheading 9802.00.80, HTSUS. In this regard, you advise in your letter of June 19, 1995, that Maybelline is not now claiming subheading 9802.00.80, HTSUS, treatment for containers made in part of U.S.-origin components, although such treatment may be claimed in the future. If in fact it is subsequently determined that subheading 9802.00.80, treatment is applicable, pursuant to 19 CFR 10.22, Mexico will be considered the country of origin of those containers made of both U.S. and Mexican parts. The country of origin of the containers imported from Indonesia, China and South Korea, as well as the containers from Mexico made entirely of Mexican parts, is considered, in each case, to be the country in which the articles were produced.
1) Containers of Mexican Origin
The country of origin marking requirements for a "good of a NAFTA country" are determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (December 8, 1993) and the interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994, to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements for these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).
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Section 134.1(g) of the interim regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the U.S. as determined under the NAFTA Marking Rules.
Section 134.22(d)(2), Customs Regulations (19 CFR 134.22(d)(2)), provides that:
A good of a NAFTA country which is a usual container,
whether or not disposable and whether or not imported
empty or filled, is not required to be marked with its
own country of origin. If imported empty, the importer
must be able to provide sufficient evidence to Customs at
the time of importation that it will be used only as a
usual container (that it will be filled with goods after
importation and that such container is of a type in which
these goods ordinarily reach the ultimate purchaser).
A usual container is defined in 19 CFR 134.22(d)(1), which provides, in part, that:
For purposes of this subpart, a usual container means the
container in which a good will ordinarily reach its
ultimate purchaser. Containers which are not included in
the price of the good with which they are sold, or which
impart the essential character to the whole, or which
have significant uses, or lasting value independent of
the contents, will generally not be regarded as usual
containers.
In Headquarters Ruling Letter (HRL) 735588 dated February 10, 1995, glass containers of Mexican origin were imported into the U.S. to be filled with beverages, e.g., Coca-Cola (or other similar products) by U.S. customers. In that case, we found that such containers are considered to be the type of usual containers defined in 19 CFR 134.22(d)(1) regardless of whether the containers are returned by the consumer after the contents have been consumed. Therefore,
pursuant to 19 CFR 134.22(d)(2), we held that the glass containers were excepted from being marked with their own country of origin. However, we also pointed out that pursuant to 19 CFR 134.24(c)(1), the outermost containers in which the glass containers were imported and reach the ultimate purchasers in the U.S. (the U.S. customers who fill the glass containers), were required to be marked with the country of origin, Mexico.
Similarly, in the instant case, since the containers determined to be of Mexican origin pursuant to 19 CFR 10.22 or the NAFTA Marking Rules in Part 102, Customs Regulations, are to be filled
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in the U.S. with cosmetic products after importation, and they are of the type in which the goods reach the ultimate purchaser, these containers are considered to be the type of usual containers defined in 19 CFR 134.22(d)(1). Therefore, pursuant to 19 CFR 134.22(d)(2), the cosmetic containers of Mexican origin are not required to be marked with their own country of origin. However, the outermost containers in which the cosmetic containers are imported and reach the ultimate purchasers in the U.S. (in this case, Maybelline, which fills the containers), are required to be marked with the country of origin, Mexico. See, 19 CFR 134.24(c)(1).
2) Containers of Chinese, South Korean, and Indonesian Origin
Section 134.24(c)(1) (19 CFR 134.24(c)(1)), provides that when disposable containers or holders are imported by persons or firms who fill or package them with various products which they sell, these persons or firms are the ultimate purchasers of these containers or holders and only the outermost containers in which the disposable containers are imported are required to be marked with the country of origin (of these containers). Disposable containers or holders are defined as the usual ordinary types of containers or holders, including cans, bottles, paper or polyethelyne bags, paperboard boxes, and similar containers or holders which are ordinarily discarded after the contents have been consumed. See 19 CFR 134.24(a).
In HRL 731863 dated February 14, 1990, plastic compacts with a mirror and applicator brush were imported empty and filled in the U.S. with powdered blush made in the U.S. The compacts were imported for the sole purpose of being filled and were not sold empty. The importer did not sell refills for the containers nor were they available in the marketplace. Thus, a consumer
who desired more blush would be required to buy a new compact. We held in that case that the cosmetic compacts were disposable containers as defined in 19 CFR 134.24(a), and accordingly,
when imported empty, were excepted from the marking requirements. Only the outermost containers in which the compacts were imported were required to be marked with the country of origin of the compacts.
Similarly, in the instant case, the empty mascara, lipstick, coverstick, pressed powder, and similar containers imported from Indonesia, China, and South Korea are to be filled in the U.S. with cosmetic products made by Maybelline, the ultimate purchaser. The entire container, including such components as a wiper and brush (depending on the nature of the product) is designed to be discarded after the contents are depleted, and refills for such containers are not available. Accordingly, such containers are disposable containers under 19 CFR 134.24(a), and are not required to be marked with their own individual country of origin. However, the outermost container in which the cosmetic containers are imported are required to be marked with the applicable country of origin of such containers.
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3) Reference to U.S. Location
Section 134.36(b), Customs Regulations (19 CFR 134.36(b)), provides that an exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in 19 CFR 134.46 or 19 CFR 134.47 which imply that an article was made
or produced in a country other than the actual country of origin.
The ultimate purchaser of the containers, Maybelline, is aware of the country of origin of the containers, and cannot be misled by its own marking, which reflects its name and U.S. address on the containers. Further, the purchasers of the various cosmetic products would not be misled as to the country of origin as a result of this marking, since these words refer to the content of the containers. See, e.g., HRL 734240 dated December 24, 1991. Therefore, 19 CFR 134.36(b) does not apply in this situation, and the containers are not required to be marked with their country of origin.
HOLDING:
1) Containers of Mexican origin imported empty to be filled with cosmetic products by the ultimate purchaser in the U.S., and designed to be discarded after use, are considered to be usual containers as defined in 19 CFR 134.22(d)(1). Therefore, pursuant to 19 CFR 134.22(d)(2), such containers are excepted from being marked with their own country of origin. However, under 19 CFR 134.24(c)(1), the outermost containers in which the cosmetic containers are imported and reach the ultimate purchaser in the U.S. (Maybelline, which fills the cosmetic containers) are required to be marked with the country of origin (of the cosmetic containers).
2) Containers of Indonesian, Chinese and South Korean origin imported empty to be filled with cosmetic products by a company which sells the products, and which are designed to be discarded after use, are considered disposable containers pursuant to 19 CFR 134.24(a). Therefore, pursuant to 19 CFR 134.24(c)(1), the company which fills the containers is the ultimate purchaser in the U.S. of these containers and such containers are excepted from being marked with their own country of origin. However, the outermost containers in which the cosmetic containers are imported are required to be marked with the country of origin (of the cosmetic containers).
3) The presence of the U.S. manufacturer's name and U.S. address on the containers does not trigger the provisions of 19 CFR 134.46 or 19 CFR 134.47, since the ultimate purchaser of the containers in the U.S., the cosmetic manufacturer, is aware of the country of origin of the containers, and cannot be misled by its own marking reflecting its name and U.S. address.
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A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
John Durant, Director
Comercial Rulings Division