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