MAR-2-05 CO:R:C:S 559066 WAS
Ms. Deborah Busada Litton C. Plath Navigation North American Division 222 Severn Avenue Annapolis, MD 21403-2569
RE: Country of origin marking for clock cases from Taiwan; U.S. Note 4, Chapter 98, HTSUS, 19 C.F.R. §134.43(b); 19 C.F.R. §11.9; 726711; 734860
Dear Ms. Busada:
This is in reference to your letters dated February 28, and March 22, 1995, requesting a ruling on the country of origin marking requirements for brass clock cases from Taiwan. A sample of the clock case was submitted for our review.
FACTS:
You state that C. Plath has received several "Notice to Mark" citations from the Customs Service in regard to shipments of brass clock cases from Taiwan. You state that since the clock case is one-piece construction, there is not a separate back plate which could be cut, stamped, embossed or engraved "Made in Taiwan". Therefore, you claim that the words "Made in Taiwan" must be incorporated directly into the tooling molds of the cases. You state that after casting and forging, the case back would contain the words "Made in Taiwan." However, the inside and outside of the case will then undergo the process of machine turning, which peels off approximately 2-3 mm of the rough surface of the case, making it smooth. You submit that as a result of the turning process, most of the letters will have been removed. After the turning process, the case will be polished to a smooth, mirror-like surface, which you claim will result in completely removing the letters. Therefore, you maintain that due to the manufacturing process of your cases, it is nearly impossible for the cases to be indelibly marked with the country of origin by means of raised or indented letters.
You further state that engraving the case after lacquering will break the lacquer barrier and will cause the case to tarnish and corrode at a rapid rate. In addition, you claim that engraving the case at this point in the manufacture of the clock case will cause the lacquer to be scratched by the letter pressing machine, which will, in effect, ruin the case. You also claim that engraving the case before the lacquering process will result in scratching the case, and the case would have to be repolished, which would remove the lettering.
You have proposed to permanently ink stamp the words "Case Made in Taiwan" on the inside center of the cases. You state that the ink would be black, clearly visible, and could not be removed without damaging the lacquer. (Emphasis added). You further claim that it is possible that the cases could be ink stamped on the outside back of the case, however, you state that the marking would not be aesthetically pleasing to the consumer.
ISSUE:
Is the sample clock case properly marked to indicate its country of origin in accordance with the country of origin marking requirements?
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 C.F.R. Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 C.F.R. §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 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 C.F.R. §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. 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.
Section 134.43(b), Customs Regulations (19 C.F.R. §134.43(b)), in conjunction with section 11.9, Customs Regulations (19 C.F.R. §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 (d) of Additional U.S. Note 4 of Chapter 91, HTSUS, 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. (Emphasis added). The country of manufacture in these requirements refers to where the movements and cases, are manufactured rather than where the clock was made.
In the instant case, the country of origin marking on the clock cases consists of the words "Case Made in Taiwan" which has been printed in ink on the back side of the clock case. This marking does not satisfy the special marking requirements for clock cases because it is not done by one of the methods described in Chapter 91, U.S. Additional Note 4, HTSUS. Printing the country of origin on the clock case in ink is not considered an indelible mark, because unlike cutting, die-sinking, engraving, or stamping, it does not leaves a permanent impression in the metal of the clock case and may smeared or wear off over time. Furthermore, the marking is not located on the most visible part of the outside back of the clock, as required in section (d) of Chapter 91, U.S. Additional Note 4, HTSUS. Since these special marking requirements for clocks are Congressionally enacted, the Customs Service has no authority to grant exceptions. See Headquarters Ruling Letter (HRL) 726711 dated October 22, 1984; see also HRL 734860 dated March 3, 1993 (Customs held that the marking on the gold foil sticker on the bottom of a porcelain 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). Accordingly, we find that the clock cases are not marked in accordance with the special marking requirements for clock cases of U.S. Additional Note 4, Chapter 91, HTSUS.
HOLDING:
Based on the information and sample provided, we are of the opinion that the clock cases are not marked in accordance with the special marking requirements for clock cases of U.S. Additional Note 4, Chapter 91, HTSUS.
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
Commercial Rulings Division Sandra -- My comments -- Craig
U.S. Proposed Harmonized Rules of Origin
Chapter 25
Additional Rule 2
(g) Fusing, sintering or agglomeration of materials of headings 25.18 or 25.19.
Heading 2518 covers dolomite while heading 2519 covers magnesium. The above rule would allow a substantial transformation for the "agglomerating" of dolomite (subhheading 2518.30 covers agglomerated dolomite), which is described in the Explanatory notes as mixing crushed calcined dolomite with a binding agent. The rule would also allow a S.T. for the "fusing" (melting together) of magnesia (subheading 2519.90.10 covers fused magnesia) which the Ex. Notes explains results in a less soluble type of magnesia used, for example, in the manufacture of crucibles or heating elements for electric ovens. A S.T. would also result from the "sintering" of magnesia (subheading 2519.90.10 also covers sintered magnesia), which the Ex. Notes says is heating magnesia in high temperature (about 1400-1800 degrees C). Sintered magnesia is used in the manufacture of refractory bricks.
I could find no rulings addressing whether the above processes result in a S.T., although HQ 734479 dated January 29, 1993, held that agglomerating spray-dried coffee (fusing fine granular materials through wetting, agglutinating and drying) did not result in a S.T. as the product remains instant coffee.
The agglomerating, fusing and sintering described above appear to be significant processes which alter the characteristics of the product somewhat to render it more suitable for certain uses. However, after the processing, the dolomite remains dolomite and the magnesia remains magnesia; so my guess is that we would find no S.T., although the Lab. should probably be consulted on this.
The applicable 102 tariff shift rule provides for "a change to heading 2518 through 2530 from any other heading." Thus, no tariff shift would result from the above processes, and, by application of the rule in 102.11(b)(1), the origin of the product would remain the country where the dolomite and magnesia originated. Additional Rule 3
Where materials from more than one country are combined together but have not undergone one of the origin-conferring processes provided for in Rule 2, origin is conferred on the country which has contributed the greatest proportion by weight of the materials that determine the classification of the goods.
- 2 -
This proposed rule is at odds with the tradtional S.T. analysis which looks to whether the combining of the materials results in a new and different article of commerce with new name, character or use. If no S.T. results, each material would retain its original country of origin.
This rule is also inconsistent with the 102 rules which (assuming there is no tariff shift), in 102.11(b), looks to the country or countries of the single material that imparts the essential character of the good. In determining essential character, weight is only one of the factors that may be considered. See 102.18(b).