HQ 559073

June 28, 1995

MAR-2: CO:R:C:S 559073 BLS

CATEGORY: Marking

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