CLA-2-34:OT:RR:NC:N1:136
Mai K. Greek
Mia Greek
13129 Evergreen Drive
Fort Worth, TX 76244
RE: The tariff classification, country of origin, and marking of “MG Essence WHIP DREAM Facial Foam Cleanser,” “MG Essence WHIP DREAM Facial Foam Maker,” and “MG Essence Clear Pouch” from China
Dear Ms. Greek:
In your ruling request received February 10, 2020, you requested a tariff classification, country of origin, and marking ruling on “MG Essence WHIP DREAM Facial Foam Cleanser,” “MG Essence WHIP DREAM Facial Foam Maker,” and “MG Essence Clear Pouch.”
Your submission identifies three subject products:
Item 1 “MG Essence WHIP DREAM Facial Foam Cleanser,” is described as a 3.5 fluid ounce liquid facial cleanser, containing a mixture of surface-active agents and several other substances.
This product is suitable for retail sale in its imported condition.
Item 2 “MG Essence WHIP DREAM Facial Foam Maker,” is described as a 1.75 fluid ounce empty plastic container with a hand-held pump, designed to create micro foam using water and the facial cleanser.
Item 3 “MG Essence Clear Pouch,” is described as a clear, 100% PVC pouch with a black nonwoven edge. It measures 0.2mm in thickness, 4” in length, 6” in height, and 2.75” in depth. You state that this item is intended to be used as a promotional give-away.
For item 1, you suggest classification in subheading 3401.30.0000, Harmonized Tariff Schedule of the United States (HTSUS); for item 2 you suggest classification in subheading 3926.90.9990, HTSUS; however, we have determined that both of the suggested classifications are incorrect, because more specific provisions exist for these two items.
The applicable subheading for “MG Essence WHIP DREAM Facial Foam Cleanser” will be 3401.30.5000, HTSUS, which provides for Organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap: Other. The general rate of duty will be free.
The applicable subheading for the “MG Essence WHIP DREAM Facial Foam Maker” will be 3924.90.5650, HTSUS, which provides for …other household articles and hygienic or toilet articles, of plastics: Other: Other: Other. The general rate of duty will be 3.4 percent ad valorem.
At this time, we are unable to issue a ruling for the “MG Essence Clear Pouch.” As requested on January 31, 2020, in our returned ruling request, N309102, we require a physical sample of this product in order to make a classification and marking determination. If you decide to resubmit your request, please include all of the material that we have returned to you, and mail your request to Director, National Commodity Specialist Division, Customs and Border Protection, 201 Varick Street, Suite 501, New York NY 10014, Attn: Binding Ruling Request, NIS Vikki Lazazo.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3401.30.5000, HTSUS, unless specifically excluded, are subject to an additional 15 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 3401.30.5000, HTSUS, listed above.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 3924.90.5650, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 3924.90.5650, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
In 19 C.F.R. § 134.1(b), “country of origin” is defined 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.”
With respect to items 1 and 2 described above, you have stated that these products will be produced in China and will be imported from China. Therefore, in our opinion, for duty purposes, the country of origin for items 1 and 2 is China.
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. 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. Accordingly, each individual container of “MG Essence WHIP DREAM Facial Foam Cleanser” and “MG Essence WHIP DREAM Facial Foam Maker” should be marked “Made in China.”
This merchandise may be subject to the Federal Food, Drug, and Cosmetic Act, the Fair Packaging and Labeling Act (FPLA), 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.
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 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 Nuccio Fera at [email protected]. If you have any questions regarding subheading 3924.90.5650, HTSUS, contact National Import Specialist Charlene Miller at [email protected]
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division