What's the HS Code for "Rouge"?

NY J86657 July 24, 2003 CLA-2-33:RR:NC:2:240 J86657 CATEGORY: Classification TARIFF NO.: 3304.20.0000; 3304.91.0010; 3304.91.0050; 3304.99.5000 Ms. Stacy Bauman American Shipping Company Inc. 140 Sylvan Avenue Englewood Cliffs, NJ 07632 RE: The tariff classification of various bulk cosmetics of US origin processed for retail sale in China Dear Ms. Bauman: In your letter dated July 1, 2003 you requested a tariff classification ruling on behalf of your client Topline Products Company. Bulk cosmetics of US origin are exported to China for retail packing. The bulk cosmetics consist of eye shadow powder, blush, facial powder, highlighter and translucent facial powder. The powders are poured into aluminum pans. Pressure is applied to the pan, compressing the powder. The aluminum pans are placed and glued into plastic compacts. The compact is packaged either onto a folding carton or on a blister card. The empty compacts and pans are products of China. Subheading 9801.00.10, Harmonized Tariff Schedule of the United States (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, which either advance the value or improve the condition of the exported product render it ineligible for duty free entry upon return to the U.S. In United States v. John V. Carr & Sons, Inc., 69 Cust. Ct. 78, C.D. 4377, 347 F.Supp. 1390 (1972), 61 CCPA 52, C.A.D. 1118, 496 F.2d 1225 (1974), the court stated that absent some alteration or change in the item itself, the mere repackaging of the item, even for the purpose of resale to the ultimate consumer, is not sufficient to preclude the merchandise from being classified under item 800.00, Tariff Schedule of the United States (TSUS) (the precursor to subheading 9801.00.10, HTSUS). The foreign processes at issue in the instant case also exceed mere repackaging. The eye shadow, blush, facial powder, highlighter and translucent facial powder are not fully prepared upon exportation but are subject to further processing: the powder is dispensed into an amount appropriate for an individual user, and this amount is then compressed into a small metal pan and the surface of the powder is sculpted. The filled metal pan is pressed/glued into a compartment of a compact. This combination of processes exceeds the ambit of mere repackaging permissible under subheading 9801.00.10, HTSUS, with the result that the merchandise has been advanced in value and/or improved in condition outside the United States. Accordingly, the U.S.-origin eye shadow and facial powder are ineligible for duty-free entry under subheading 9801.00.10, HTSUS, upon its return to the United States. 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. Merchandise that 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). In Upjohn Co. v. United States, 623 F. Supp. 1281 (CIT 1985), the U.S. Court of International Trade stated that: [e]xported American products retain their identity as American products, provided they are not transformed into new products while abroad." 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. 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. In this case, bulk cosmetic powder from the United States is sent to China, where it is measured and compressed into individual metal pans, which are placed/glued 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 for purposes of establishing country of origin. Therefore, it is our determination that the foreign processes do not constitute a substantial transformation and the cosmetic powders remain products of the United States. Accordingly, the imported cosmetic powders are not subject to the country of origin marking requirements of 19 U.S.C. 1304. If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the U.S. The applicable subheading for the eye shadow will be 3304.20.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations: Eye make-up preparations. The rate of duty will be free. The applicable subheading for the blush will be 3304.91.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations: Powders, whether or not compress: Rouge. The rate of duty will be free. The applicable subheading for the pressed powder and translucent powder will be 3304.91.0050, Harmonized Tariff Schedule of the United States (HTS), which provides for Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations: Powders, whether or not compressed: Other. The rate of duty will be free. The applicable subheading for the highlighter will be 3304.99.5000, Harmonized Tariff Schedule of the United States (HTS), which provides for Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations: Other. The rate of duty will be free. 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 (202) 418 3412. 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

HQ 953537 June 16, 1993 CLA-2 CO:R:C:F 953537 GGD CATEGORY: Classification TARIFF NOS.: 3304.10.0000; 3304.20.0000; 3304.30.0000; 3304.91.0010; 4202.12.2020; 9603.30.6000; 9615.11.3000 Mr. Paul John Crowley Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street New York, New York 10048 RE: "Looks Good Cosmetics Caddy" Dear Mr. Crowley: This letter is in response to your inquiry of January 25, 1993, on behalf of your client, the Mel Appel Group, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an article identified as a "Looks Good Cosmetics Caddy," to be imported from Taiwan. A sample article and sketches were submitted with your inquiry. The sketches have been provided to reflect features not present in the sample that will be incorporated in the imported article. FACTS: The sample submitted to this office, identified by item no. 2645, consists of a plastic, heart-shaped cosmetic case measuring approximately 12 inches by 9 inches by 3 inches (closed). The case opens to reveal a mirror recessed into the upper half. In the base or horizontal half, cosmetic articles are mounted on a removable plastic tray which contains eight shades of powder eyeshadow, three shades of cream eyeshadow, two shades of rouge/blush, a lipstick, a bottle of nail polish, an eyebrow comb/brush, two large blush brushes, two eyeshadow brushes, and a small lip brush. The sketches indicate that beneath the -2- removable tray, the imported case will contain a built-in tray with five open compartments "for organizing jewelry and hairwear." There is no indication that any items of jewelry and/or hairwear will be imported with or for the articles noted above. ISSUE: Whether the article should be classified as a set, or as individual, separately classifiable components. LAW AND ANALYSIS: Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs. As noted above, item no. 2645 consists of numerous individual components. The article cannot be classified by reference to GRI 1 because several of the components are classifiable in different headings. The lipstick, nail polish, eyeshadows, and rouges, are classifiable in heading 3304, HTSUSA, as beauty or make-up preparations. The plastic organizer is classifiable in heading 4202, HTSUSA, as a vanity case. The various brushes are classifiable in heading 9603, HTSUSA, as brushes. The comb/brush combination is classifiable in heading 9615, HTSUSA, as combs, hair-slides and the like. In pertinent part, GRI 2(b) states that: [t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. GRI 3(a) directs that the headings are regarded as equally specific when each of the four separate headings refers to only part of the composite article. Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states that: -3- [m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. Explanatory Note VIII to GRI 3(b) provides the following guidance concerning the essential character determination: The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. Each component within the plastic organizer is essentially similar in nature and value, and complements the other components, providing play and adult grooming practice for young girls. The plastic case component itself, however, is unique. It may serve to collect, organize, transport, and store not only the cosmetic components with which it is entered, but other items as well (e.g., jewelry, hairwear, etc. in the base compartments). Explanatory Note IX to GRI 3(b) states in pertinent part that: For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only...but also those with separable components, provided these components are adapted one to the other and are mutually complementary....(emphasis in original). Explanatory Note X(b) to GRI 3(b) relates that: For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which: consist of products or articles put up together to meet a particular need or carry out a specific activity.... -4- Although the plastic case is the component of greatest bulk, weight, and value, the substance of Explanatory Notes VII, IX, and X(b) indicates that the case's dissimilarity from the other components precludes it from providing the whole article with its essential character. Furthermore, it is irrelevant that additional components may eventually be included in the base compartments of the plastic case. The presence of the compartments simply demonstrates that the cosmetic and container components, as entered, are not mutually complementary, not adapted to one another, and are not put up to meet a particular need or carry out a specific activity. Thus, the goods do not comprise a set. We next note that certain containers may be classified with the articles they are designed to hold, if the requirements of GRI 5(a) are met. In pertinent part, GRI 5(a) states that: Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long- term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. (emphasis added). Although the plastic case is a container specially shaped or fitted to contain a set of articles, the rule requires: 1) that the articles to be contained are specific; and 2) that the case be entered with the articles it is intended to contain. According to statements on the sketches of the case's extra built-in tray, the base portion of the case is intended to contain articles of "jewelry and hairwear." Articles thus described are not sufficiently specific, and there is no indication that they will be entered with the container fitted to hold them, as GRI 5(a) requires. It is thus our determination that GRI 5 does not operate to make the container classifiable with its contents; therefore, each individual component, in addition to the container, is separately classifiable. HOLDING: The individual components of item no. 2645, packaged together for retail sale as a "Looks Good Cosmetics Caddy," are separately classified as follows: -5- The lipstick is properly classified in subheading 3304.10.0000, HTSUSA, the provision for "Beauty or make-up preparations... manicure or pedicure preparations: Lip make-up preparations." The general column one duty rate applicable to this merchandise is 4.9 percent ad valorem. The eyeshadows (cream and powder) are properly classified in subheading 3304.20.0000, HTSUSA, the provision for "Beauty or make-up preparations...manicure or pedicure preparations: Eye make-up preparations." The general column one duty rate applicable to this merchandise is 4.9 percent ad valorem. The nail polish is properly classified in subheading 3304.30.0000, HTSUSA, the provision for "Beauty or make-up preparations...manicure or pedicure preparations: Manicure or pedicure preparations." The general column one duty rate applicable to this merchandise is 4.9 percent ad valorem. The rouge/blush is properly classified in subheading 3304.91.0010, HTSUSA, the provision for "Beauty or make-up preparations...manicure or pedicure preparations: Other: Powders, whether or not compressed, Rouges." The general column one duty rate applicable to this merchandise is 4.9 percent ad valorem. The plastic organizer is properly classified in subheading 4202.12.2020, HTSUSA, the provision for "Trunks, suitcases, vanity cases...holsters and similar containers;...: Trunks, suitcases, vanity cases...and similar containers: With outer surface of plastics or of textile materials: With outer surface of plastics, Structured, rigid on all sides: Trunks, suitcases, vanity cases and similar containers." The general column one duty rate applicable to this merchandise is 20 percent ad valorem. The brushes are properly classified in subheading 9603.30.6000, HTSUSA, the provision for "Brooms, brushes...squeegees (other than roller squeegees): Artists' brushes, writing brushes and similar brushes for the application of cosmetics: Valued over 10 cents each." The general column one duty rate for this merchandise is 3.1 percent ad valorem. The comb/brush combination is properly classified in subheading 9615.11.3000, HTSUSA, the provision for "Combs, hair-slides and the like...and parts thereof: Combs, hair-slides and the like: Of hard rubber or plastics: Combs: Valued over $4.50 per gross: Other." The general column one duty rate for this merchandise is 28.8 cents per gross plus 4.6 percent ad valorem. -6- Lipstick, nail polish, eyeshadows, and rouges may be subject to regulations of the Food and Drug Administration (FDA). Questions regarding these products may be directed to: FDA 5600 Fishers Lane Rockville, Maryland 20857 (301) 443-1544, 3170 Sincerely, John Durant, Director Commercial Rulings Division