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HQ 561640




June 14, 2000

MAR-2 RR:CR:SM 561640 KSG

CATEGORY: MARKING

Janet Westrick
The A.W. Fenton Company, Inc.
P.O. Box 81179
Cleveland, OH 44181-0179

RE: Country of origin marking of imported damper cases; 19 CFR 134.46

Dear Ms. Westrick:

This is in response to your letter of February 8, 2000, on behalf of American Showa, Inc., requesting a binding ruling on the country of origin marking of imported damper cases that will be used in the U.S. in the manufacture of motorcycle shock absorbers.

FACTS:

American Showa, Inc. imports damper cases that are made in Canada. The damper case is a metal cylindrical casing that functions as the lower external housing of a finished motorcycle shock absorber. You state that the damper cases are classified in subheading 8714.19.0060 of the Harmonized Tariff Schedule of the United States (“HTSUS”).

After importation into the U.S., the damper cases will be further machined by American Showa and then forwarded to a third party for plating and/or buffing. The damper cases will be then be returned to American Showa which will use approximately 98% of the cases in the manufacture of motorcycle shock absorbers and 2% to distribute to dealerships and repair shops for repair purposes. You client proposes to mark the dampers “Cast in Canada.”

The cases will bear the logo of the importer “American Showa” as well as the lot and part number. You propose to place the country of origin marking directly below the words “American Showa.” The word “American” in the logo will measure 4mm in height, the word “Showa” will measure 5-6mm in height and the country of origin marking will measure 5mm in height. You submitted an illustration of the marking that is not drawn to scale. You ask whether the proposed marking is acceptable.

ISSUE:

Whether the proposed marking of imported damper cases, as described above, satisfies the country of origin marking requirements set forth in 19 U.S.C. 1304.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930 (19 U.S.C. 1304), as amended, 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 its 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304.

Section 134.46, Customs Regulations (19 CFR 134.46), as revised by T.D. 97-72, dated August 20, 1997, provides:

In any case in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning.

Section 134.46 provides that its special marking requirements are triggered only when Customs determines that the non-origin marking may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Customs has ruled that in order to satisfy the “close proximity” requirement, the country of origin marking must appear on the same sides(s) or surface(s) in which the name of the locality other than the country of origin appears. See HRL 708994, dated April 24, 1978.

Section 134.47, Customs Regulations (19 CFR 134.47), provides:

When as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or ”United States” or “America” appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by “Made in,”“Product of,” or other similar words, in close proximity or in some other conspicuous location. Customs explained in HRL 560806, dated March 19, 1998, that the purpose of 19 CFR 134.47 and related provision 19 CFR 134.46 is to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that 19 CFR 134.46 requires that the name of the actual country of origin appear “in close proximity” to the U.S. reference and in lettering of at least comparable size. By contrast, 19 CFR 134.47 is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location in the U.S. or “United States or “America” appears on the imported article, the name of the country of origin must appear in close proximity or “in some other conspicuous location.” In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by “Made in,” “Product of,” or other similar words.

We find that the reference to “American” on the damper cases may mislead or deceive the ultimate purchaser with regard to the actual origin of the damper cases. Because you have not indicated whether the word “American” is a trade name or trademark, we are unable to determine if the provisions of 19 CFR 134.47 are triggered in this case. We find that the proposed marking would satisfy the conspicuousness requirements of either provision.

However, Customs held in Headquarters Ruling Letter (“HRL”) 732964, dated August 3, 1990, that the marking “Cast in Taiwan” appearing with the phrase “Hand Painted in USA” did not clearly indicate that the imported article was a product of Taiwan. Based on the above and the facts presented in this case, we find that “cast in” are not words of similar meaning to “Made in” or “Product of.” A phrase such as “Product of Canada,” or “Made in Canada” would satisfy the marking requirements.

HOLDING:

The proposed marking of the imported damper cases would satisfy the conspicuous- ness requirements of either 19 CFR 134.46 or 134.47. We find that the words “Cast in” are not words of similar meaning to “Made in,” or “Product of.” A phrase such as “Product of Canada,” or “Made in Canada” would satisfy the marking requirements.

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


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