HQ 560843 - Country of origin marking of wooden clocks; special marking requirements; - United States International Trade Commision Rulings

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HQ 560843

May 1,
1998
MAR-05 RR:TC:SM 560843 BLS

CATEGORY: MARKING

Ms. Elizabeth Winkleman
The Bombay Company, Inc.
550 Bailey Avenue
Fort Worth, Texas 76107

RE: Country of origin marking of wooden clocks; special marking requirements;
Additional U.S. Note 4, Chapter 91; silk screening

Dear Ms. Winkleman:

This is in reference to your letter dated December 9, 1997, on behalf of The Bombay Company, Inc., requesting a ruling concerning the country of origin marking requirements of certain wooden clocks imported through the port of Fort Worth. We have received samples of three model clocks with your request.

FACTS:

Each of the sample clocks is marked on the back of the clock case in gold lettering against a dark wooden background as follows:

MADE IN TAIWAN
MOVEMENT- JAPAN

We will assume for purposes of this ruling that these markings reflect that the clock movement was made in Japan and that the clock case is a product of Taiwan.

ISSUE:

What are the marking requirements for the subject clocks?

LAW AND ANALYSIS:

General Marking Requirements

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, and permanently as the nature of the article (or 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. 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 of 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 of the clock movement. The country of origin marking must also be legible and in a conspicuous place.

In this case, as the movement is made in Japan, the words "MOVEMENT - JAPAN" by itself is an acceptable marking for purposes of indicating the country of origin of the clock. (See Headquarters Ruling Letter (HRL) 735251 dated October 7, 1993, where Customs indicated that in the case of watches, the word "Movement" or an abbreviation thereof would be the equivalent of "Made In." While this ruling concerned the marking requirements for watches, the principle applies equally to the marking of clocks.)
However, as the words "MADE IN TAIWAN" indicating the country of origin of the case are located immediately above the words "MOVEMENT - JAPAN," the issue we must address is whether these markings reflecting both locations satisfy the requirements of 19 U.S.C. 1304.

In American Burtonizing Co. v. United States, 13 Ct. Cust. Appls. 652, T.D. 41489 (1926), the Court of Customs Appeals stated:

Obviously, the purpose of section 304, which goes into great detail as to how the marking shall be done, was to require a marking such as would be understood by purchasers of foreign-made goods as
giving definite and reliable information as to the country of origin. It is not reasonable to suppose that Congress, by the use of the word
"indicate" meant only that the words used should hint at the country of origin. The object sought to be obtained by the legislature could best be obtained by an indication which was clear, plain, and unambiguous and which did more than merely hint at the country of origin.

In HRL 734095 dated February 18, 1992, we found that the marking "Made in Holland" on a connector of a "T-Probe" (medical testing device) did not satisfy the marking requirements of section 1304 when the marking "Made in U.S.A." also appeared on a second component (gastroscope) of the article. While the U.S. marking was less readily apparent than the "Made in Holland" marking, it could be readily seen if one were to examine the article. We found that although the country of origin marking "Made in Holland" would satisfy section 1304 if it was the only marking on the device, as a result of the additional marking, the country of origin marking on the article was not clear, plain, or unambiguous. Therefore, we held that the marking "Made in Holland" failed to indicate the country of origin as required by 19 U.S.C. 1304.

Similarly, in the instant case, we find that the words "MADE IN TAIWAN," located directly above "JAPAN-MOVEMENT", tend to confuse an ultimate purchaser as to the actual country of origin of the clock. The marking is not clear, plain, or unambiguous in indicating the country of origin of the clock. Accordingly, we hold that this marking does not satisfy the requirements of 19 U.S.C. 1304. "JAPAN - MOVEMENT, CASE MADE IN TAIWAN", is an example of a marking that would satisfy the requirements of 19 U.S.C. 1304, as such marking would clarify that only the case, and not the clock, was made in Taiwan.

Special Marking Requirements

1) Clock Movement

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 Chapter 91, 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 the note.

Since these special marking requirements for clocks are Congressionally enacted, the Customs Service has no authority to grant exceptions.

Section (b) of U.S. 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 U.S.
Note 4 requires that clock cases provided for in Chapter 91, HTSUS, 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" for these requirements refers to where the movement and cases were manufactured, rather than where the clock was made.

The clock movements for the two "Devonshire" model clocks are housed in black plastic in the back of the clock, in a circular cavity in the wood. The name of the manufacturer and the word "JAPAN" along with certain other information is molded into the back of the plastic. We find that this marking meets the requirements of U.S. Note 4, as such marking is also conspicuous and satisfies the informational dictates of the Note.

The movement for the "Pendulum" clock is also housed in black plastic, the back of which is not totally visible without inverting the clock so that its front is in a downward . position. The marking for this component is molded into the plastic, and reflects the name of the manufacturer, "SKJ", "JAPAN," and other information. However, this marking is located on the top part of the plastic housing, and is partially obscured by the clock case and the shadow reflecting from the case. The name of the manufacturer, located at the top of the housing, is particularly difficult to read as it cannot easily be seen without tilting the clock head downward and using a light to circumvent the shadow effect. Accordingly, as this marking is not conspicuous, it fails to meet the special marking requirements of U.S. Note 4.

The marking on the movement housing of all three clocks also contains the additional words "NO (0) JEWELS." U.S. Note 4 requires that a watch movement be marked with the number of jewels contained therein, which translates to one or more. As the movements of the three clocks have no jewels, this additional marking is not required. See HRL 559998 dated January 30, 1997.

2) Clock Case

As noted above, U.S. Note 4 requires that the clock movement (and clock case) be conspicuously and indelibly marked only by the following methods: cutting, die-sinking,
engraving, or stamping or mold-marking (either indented or raised). Each model clock is marked on the back of the clock case in gold raised lettering indicating the country (Taiwan) where the clock case was manufactured.

You state that this type of marking is accomplished by means of a silk screen process, using indelible ink and then applying an acid cured clear top coat. You believe that the marking cannot be removed without sanding or stripping the finish and ink, which would substantially damage the clock or its case. The issue to be resolved is whether this marking satisfies the requirements of U.S. Note 4. Our review of this matter required an analysis of the marking by the Customs Office of Laboratories and Scientific Services. Their comments, in pertinent part, follow:

The analysis indicates that the wooden housing has been stained and the gold colored lettering is printed onto the stained wood. The entire housing is then coated with a durable urea formaldehyde resin which coats the ... lettering and the wood. ...... Though the [country of origin] marking could be considered permanent, it has not been affixed to the wood by "cutting, die-sinking, engraving, stamping... or mold marking (either indented or raised)". Though the lettering is raised from the surface of the wood, it is due to the consistency of the ink and not from a stamping process. Further, the analysis shows that the printing process does not leave an impression on the underlying wood of the mantelpiece.

Accordingly, we find that the "silk screen" process which uses indelible ink to mark the country of origin of the clock case does not satisfy the special marking requirements of U.S. Note 4.

You also enclose with your request NY Ruling 815146 dated October 10, 1995, where Customs held that a clock case "stamped" with indelible ink bearing the words MADE IN CHINA was an acceptable marking for purposes of U.S. Note 4.

In Headquarters Ruling Letter (HRL) 560636 dated January 26, 1998, we revoked NY Ruling A84167 which held that marking the stainless steel back of a clock case with permanent indelible ink was allowable. In HRL 560636, we found that such marking was inconsistent with the statutory methods of marking clock cases prescribed by U.S. Note 4, which includes "stamping." The ruling was published in the CUSTOMS BULLETIN, Vol. 32, No. 8, dated February 25, 1998. As NY Ruling 815146 erroneously held that marking with indelible ink was a "stamping" process and allowable under the special marking requirements for clock cases, we intend to publish
a notice in the CUSTOMS BULLETIN proposing to modify that ruling in accordance with our decision in HRL 560636. There will be a 30 day period to file comments which will be considered in response to the proposed action.

HOLDING:

1) The marking "MADE IN TAIWAN" and "JAPAN-MOVEMENT" in a vertical arrangement located on the back of the model clock cases does not satisfy the requirements of 19 U.S.C. 1304 as it would tend to confuse an ultimate purchaser as to the actual country of origin of the clock.

2) As the marking on the back of the movement housing of the "Pendulum" clock is not conspicuous, it fails to meet the special marking requirements of U.S. Note 4.

3) The special marking requirements mandate that a watch movement be marked with the number of jewels contained therein, which translates to one or more. As the model clock movements contain no jewels, the words "NO (0) JEWELS" on the movement housing of each model clock is not a required marking . See HRL 559998 dated January 30, 1997.

4) The "silk screen" process which uses indelible ink to mark the country of origin of the clock case does not satisfy the special marking requirements of U.S. Note 4, as the marking has not been affixed to the wood by "cutting, die-sinking, engraving, or stamping or mold marking (either indented or raised)."

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

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