Mar 2-05 CO:R:C:V 734860 RSD
Ms. Jacqueline A. Bonace
Administrative Assistant
International Trade Division
Blair Corporation
220 Hickory Street
Warren, Pennsylvania 16366-0001
RE: Country of origin marking for a porcelain clock; clock case;
conspicuous; legible; special marking for clocks; 19 CFR 134.41;
19 CFR 134.43(b)
Dear Ms. Bonace:
This is in response to your letter dated October 16, 1992,
requesting a ruling on the country of origin marking requirements
for a porcelain clock imported from Taiwan. We have received a
sample of the clock. We are granting your request that certain
information be kept confidential.
FACTS:
Blair Corporation plans on importing a porcelain clock made
in Taiwan. The clock will be imported through the port of
Cleveland, Ohio. The clock has a quartz movement and is battery
operated. The clock is made of porcelain and is painted with a
ceramic type paint. It is decorated with a German motif and has
two figurines of a man and a woman to adorn it. The dial or face
is round and near the top of the clock. The face is gold with
black Roman numerals which indicate the time. The country of
origin of the clock, Taiwan, is marked on the bottom of the face
in black letters of about 1/8th of an inch against the gold
background. The country of origin marking is noticeable from a
quick glance of the clock to tell the time. The clock movement
is housed in black plastic in the back of the clock, in a
circular cavity in the porcelain, which has a diameter of a
little over 4 inches. There is no plate or cover over the
circular cavity protecting the movement so that this black
plastic is not obscured. The words "QUARTZ" and "No(0) JEWELS"
UNADJUSTED" are molded into the back of the plastic. On the
bottom of the porcelain clock case, there is a small adhesive
gold foil sticker which reads "FABRIQUE A TAIWAN".
ISSUE:
Is the sample clock properly marked to indicate its country
of origin to satisfy the country of origin marking law?
LAW AND ANALYSIS:
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 U.S. 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 U.S. the
English name of the country of origin of the article.
Congressional intent in enacting 19 U.S.C. 1304 was that the
ultimate purchaser should be able to know by an inspection of the
marking on the imported goods the country of which the goods is
the product. The evident purpose is to mark the goods so that at
the time of purchase the ultimate purchaser may, by knowing where
the goods were produced, be able to buy or refuse to buy them, if
such marking should influence his will." United States v.
Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR
134.41(b)), mandates that the ultimate purchaser in the U.S. must
be able to find the marking easily and read it without strain.
It has been the position of the U.S. Customs Service for
many years that the country of origin of a watch or clock is the
country of manufacture of the watch or clock movement. The
addition of the hands, dial, case, or watchband add definition to
the time piece but do not change the character or use of the
watch or clock movement which is the "guts" of the watch or
clock. Accordingly, in order to satisfy the requirements of 19
U.S.C. 1304, the clock must be marked with the name of the
country of manufacture or the clock movement. The country of
origin marking must also be conspicuous.
To determine if a marking is conspicuous Customs has
indicated that there are certain factors to consider.
Among these factors are the size of the marking the location of
the marking, whether the marking stands outs, and the legibility
of the marking. The size of the marking should be large enough
so that the ultimate purchaser can easily see the marking without
strain. The location of the marking should be in a place on the
clock where the ultimate purchaser could expect to find the
marking or where he/she could easily notice it from a casual
inspection. Whether the marking stands out is dependent on where
it appears in relationship to the other print on the clock and
whether it is in contrasting letters to the background. The
legibility of the marking is determined by the clarity of the
letters and whether the ultimate purchaser could read the letters
of the marking without strain. No single factor is considered
conclusive in determining whether a marking meets the
conspicuousness requirement of 19 CFR 134.41 and 19 U.S.C. 1304.
Instead, it is the combination of these factors which will
determine whether the marking on a clock is acceptable. In
addition, the country of origin marking can be done through a
variety of different methods such as die stamping, etching, or
engraving. Any method of marking is sufficient so long as it is
permanent. No matter where the marking appears or what method of
marking is used, the marking must be large and clear enough so
that the ultimate purchaser of the clock can easily find it and
read it with the unaided eye.
Although the marking is not huge, we nevertheless find that
the country of origin marking on the clock is acceptable. It is
in a location on the bottom of the face of the dial of the clock
where it can be observed through a casual inspection of the
article. It is also large enough and the letters are in a
contrasting color to their background so that the marking can be
read without strain or difficulty. Accordingly, we find the
marking to be legible and conspicuous.
Section 134.43(b), Customs Regulations (19 CFR 134.43(b)),
in conjunction with section 11.9, Customs Regulations (19 CFR
11.9), provides that clocks must be marked in accordance with the
special marking requirements set forth in Chapter 91, Additional
U.S. Note 4 of the Harmonized Tariff Schedule of the United
States (HTSUS) (19 U.S.C. 1202). This note requires that any
clock movement, or case provided for in the subpart, whether
imported separately or attached to any article provided for in
the subpart, shall not be permitted to be entered unless
conspicuously and indelibly marked by cutting, die-sinking,
engraving, or stamping or mold-marking (either indented or
raised), as specified in the provisions of this note. This
language is mandatory.
Section (b) of Note 4 requires that clock movements shall be
marked on the most visible part of the front or back plate to
show the name of the country of manufacture; the name of the
manufacturer or purchaser; and, in words, the number of jewels,
if any, serving a mechanical purpose as frictional bearings.
Section (d) of Note 4 requires that clock cases shall be marked
on the most visible part of the outside of the back to show the
name of the country of manufacture. The country of manufacture
in these requirements refers to where the movements, and cases,
are manufactured rather than where the clock was made.
The clock movement has markings on the back plastic to
indicate that it has no jewels, but we are unable to observe any
markings on the movement which indicate the country of
manufacture or the name of the manufacturer or purchaser. We
also have consulted with the National Import Specialist for
clocks on what constitutes the clock case for the special marking
requirements. In his opinion the clock case consists of the
entire porcelain structure. Upon observation of the porcelain
clock case, we are unable to find any marking regarding the clock
case except for the tiny gold foil sticker on the bottom surface
of the porcelain. The marking on the gold foil sticker on the
bottom of the clock case does not satisfy the special marking
requirements for clock cases because it is not done by one of the
methods described in U.S. Additional Note 4, and it is not in a
proper location. Since these special marking requirements for
clocks are Congressionally enacted, the Customs Service has no
authority for granting exceptions. (See HQ 726711, October 22,
1984). If a plate or cover is placed on the back of the case
over the movement, then the special marking requirements
regarding the clock case may put there.
HOLDING:
The country of origin marking on the face of the dial is
conspicuous and satisfies 19 U.S.C. 1304. The clock movement and
the clock case are not marked in accordance with the special
marking requirements for clocks of U.S. Additional Note 4,
Chapter 91, (HTUS).
Sincerely,
John Durant, Director
Commercial Rulings Division