- Type : may be regarded as failing to qualify for classification in heading 9706 as "antique," we refer to the provisions of General Note 19, HTSUS. This note provides, in general, that when goods subject to different rates have been commingled in such a way that the quantity or value of each class cannot be readily ascertained without physical segregation of the goods, the commingled goods shall be subject to the highest rate. Customs Regulations provide in 19 CFR 152.13 that when Customs discovers commingled goods, the importer shall be notified and allowed the opportunity to perform the segregation necessary to ascertain the quantity of each class of good. However, in the instant situation, the protestant had already performed a segregation on the invoices as to which were eligible for tariff treatment as American Goods under heading 9801, HTSUS. Customs appraisal was conducted to verify protestant's classification. See Headquarters Ruling Letter (HRL) 961414, dated July 9, 1998. There HTSUS : 9105.29.5000; 9105.99.6000
961414; 726711; 729518
CLA-02/MAR-05 RR:CR:SM 562149 KKV
CATEGORIES: Classification, Marking
TARIFF NO: 9105.29.5000, 9105.99.6000
Port Director of Customs
6747 Engle Road
Middleburg Heights, OH 44130
RE: Application for Further Review and Protest No. 4101-01-100169; Classification and marking of imported clocks; Antiques; U.S. Additional Note 4, Chapter 91, HTSUS; Special marking requirements; 19 CFR 134.43(b); 19 CFR 11.9
Dear Sir or Madam:
This is in response to your memorandum dated May 29, 2001 (and subsequent submission on September 26, 2001), which forwards for our review an Application for Further Review of Protest No. 4101-01-100169, filed on behalf of Professional Clockery (Pro Clocks). Specifically, the timely-filed protest involves the tariff classification and country of origin marking requirements applicable to a shipment of clocks from China. We regret the delay in responding.
The importer has protested the issuance of a Notice to Mark/Redeliver (CF 4647) with regard to a shipment of approximately one thousand clocks imported from China. Review of the file and supporting documentation reveals that the clocks fall into five categories. The first two categories, which are not at issue in the subject protest, consist of clocks that have either been marked with their country of origin or are returned goods of U.S. origin, not subject to country of origin marking requirements. Therefore, at issue are the following three categories:
Clocks that are claimed to be antique ( i.e, greater than 100 years of age), in their entirety;
Clocks that have an “antique” movement of undetermined age and a new case, and
Clocks that have an “antique” case with an “old” (not antique) movement.
To evaluate the claims in the absence of convincing documentation, the import specialists made a site visit to the importer's premises and attempted to examine the records. In addition, records were examined at a different location. Of those clocks for which there was a certificate of authenticity, Customs sampled nine clocks at random and had them appraised by an independent clock appraiser for a verification of the claim that they were more than 100 years old.
The appraiser found that all the clocks that were examined, all of which had been certified by the importer to be antiques, were less than 100 years old. The appraiser further stated that the clocks were more likely much less than 100 years of age because of the substandard “antiqueing” added to the case, in some cases by a shoe polish-like material that rubbed of easily when handled.
Whether, in light of the contested tariff classification and applicability of the country of origin marking requirements, the issuance of a Notice to Mark/Redeliver in connection with a shipment of imported clocks was appropriate.
LAW AND ANALYSIS:
I. Tariff Classification
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See Treasury Decision (T.D.) 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The following HTSUS provisions are under consideration:
9105 Other Clocks
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9105.29.5000 Wall Clocks:
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* * *
* * *
Valued over $5 each
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* * *
* * *
* * *
Valued over $5 each.
Antiques of an age exceeding 100 years, Other.
Also under consideration is General Note 19, HTSUS, which provides in pertinent part:
19. Commingling of Goods.
Whenever goods subject to different rates of duty are so packed together or mingled that the quantity or value of each class of goods cannot be readily ascertained by customs officers (without physical segregation of the shipment or the contents of any entire package thereof), by one or more of the following means:
verification of packing lists or other documents filed at the time of entry, or
evidence showing performance of commercial settlement tests generally accepted in the trade and filed in such time and manner as may be prescribed by regulations of the Secretary of the Treasury, the commingled goods shall be subject to the highest rate of duty applicable to any part thereof unless the consignee or his agent segregates the goods pursuant to subparagraph (b) hereof.
There is no dispute that if the clocks are not eligible for classification as antiques, they would be classifiable in heading 9105, HTSUS, under the provisions for clocks. Under the facts presented here, the importer provided a blanket claim for classification of the clocks as antiques based on the invoice description, the “Certificate of Authenticity,” and a wax stamp provided by the Chinese exporter. The validity of the claim has been subject to question by the fact that a certificate and the stamp appeared on the clocks that were claimed to be new, as well as on those for which the antique claim was made. The importer provided catalog pages to demonstrate that it was importing antique clocks. However, there was no correlation between the catalog pages and the clocks from the shipment.
In an attempt to confirm the claim, Customs sampled at random nine clocks from the shipment and had an independent appraiser determine whether there was evidence on the clock itself to enable one to conclude that it was of an age greater then 100 years. The report on each clock stated that the clocks were much less than 100 years old.
The ENs for heading 9706 state that the heading includes “(12) Clocks and watches” and further state that “Provided that they retain their original character, the heading includes antique articles which have been repaired or restored.” Customs does not go beyond the provisions in the ENs to include within the terms “repaired or restored” completely new movements in old clock cases and completely new cases or faces that have been altered to appear to be antique with old movements inserted in them. These articles are known in the antiques trade as being other than antique, regardless of the claims made about them by the importer, the shipper, or the originating factory where they were constructed. Therefore, the latter two categories of clocks under consideration do not rise to the level of antique because substantial alterations and changes in the structure cause them to lose their original character.
This conclusion is underscored by the Customs Regulations at 19 CFR 10.53(b) which provide, in pertinent part:
Antiques of the age prescribed by subheading 9706.00.00, HTSUS, . . . shall be admitted free of duty though repaired or renovated. If however, an antique has been repaired with a substantial amount of additional material, without changing the original form of shape, the original and added portions shall be appraised and reported as separate entities and the basis for such report shall be plainly indicated on the invoice by the appraiser. In such cases duty shall be assessed on the portion added. If the repairs consist of an addition to an article of a feature which changes it substantially from the article originally produced, or if the antique portion has otherwise been so changed as to lose its identity as the article which was in existence prior to the time prescribed in subheading 9706.00.00, HTSUS, the entire article shall be excluded from free entry under subheading 9706.00.00, HTSUS. [Emphasis added]
The articles in the latter two categories under consideration are so changed as to lose their identity as the article which was in existence more than 100 years ago. Therefore, the articles in the latter two categories should be excluded from free entry under subheading 9706.00.00, HTSUS.
As to whether the remaining merchandise in the first category may be regarded as failing to qualify for classification in heading 9706 as “antique,” we refer to the provisions of General Note 19, HTSUS. This note provides, in general, that when goods subject to different rates have been commingled in such a way that the quantity or value of each class cannot be readily ascertained without physical segregation of the goods, the commingled goods shall be subject to the highest rate. Customs Regulations provide in 19 CFR 152.13 that when Customs discovers commingled goods, the importer shall be notified and allowed the opportunity to perform the segregation necessary to ascertain the quantity of each class of good. However, in the instant situation, the protestant had already performed a segregation on the invoices as to which were eligible for tariff treatment as American Goods under heading 9801, HTSUS. Customs appraisal was conducted to verify protestant's classification. See Headquarters Ruling Letter (HRL) 961414, dated July 9, 1998. Therefore, the clocks claimed to be “antique” (i.e., over 100 years of age), in their entirety and entered in subheading 9706.00.0060, HTSUS, are properly classified in subheadings 9105.29.5000 or 9105.99.6000, HTSUS, depending on whether they are wall clocks or other than wall clocks.
Country of origin 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 134.43(b), Customs Regulations (19 CFR 134.43(b)), in conjunction with section 11.9, Customs Regulations (19 CFR 11.9), provides that watches and clocks must be marked in accordance with the special requirements of Chapter 91, Additional U.S. Note 4 of the Harmonized Tariff Schedule of the United States (HTSUS) (19 U.S.C. 1202). This note (hereinafter “Note 4”) requires that any clock movement or case provided for Chapter 91, HTSUS, whether imported separately or attached to any article provided for in Chapter 91, 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. This marking is mandatory - because the special marking requirements for clocks are Congressionally enacted, the Customs Service has no authority for granting exceptions. (See HRL 726711, dated October 22, 1984).
Nevertheless, the protestant asserts that the subject clocks are exempt from special marking requirements, and in support of its position cites Headquarters letter 729518, dated May 28, 1986, which discussed the marking of imported timepieces which are 35 to 85 years old. In our opinion, this ruling is not relevant to the matter at hand. Unlike the merchandise in 729518, supra, the merchandise at issue here does not consist of “complete watches, clocks and timing apparatus…whose primary commercial value is derived from being regarded as antiques” but consists, instead, of clocks that are an amalgam of “antique” and new components (i.e., either “antique” movements of undetermined age with new cases or “old” movements placed in “antique” cases). As for the clocks in the first category (i.e., those claimed to be “antique” in their entirety), the evidence that failed to establish that the clocks are greater than 100 years, is likewise deficient in establishing to Customs satisfaction that the clocks are 35 to 85 years old in their entirety. Therefore, the ruling has no precedential value in regard to exempting the subject merchandise from the special marking requirements and we find that the issuance of the marking notice is not inconsistent with 729518, supra, as the protestant contends.
With regard to the special requirements applicable to clocks, 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. Additionally, section (d) of 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 assembled.
Inasmuch as the clocks at issue in the subject protest are classified in subheadings 9105.29.5000 or 9105.99.6000, HTSUS, depending upon whether they are wall clocks or other than wall clocks, they are subject to the special marking requirements of Note 4. Therefore, the issuance of the Notice to Mark/Redeliver (CF 4647) was proper. Accordingly, the subject protest should be denied in full. The merchandise at issue must be marked in compliance with the provisions of Note 4, exported, or destroyed, pursuant to 19 U.S.C. 1304(h) and 19 CFR 134.51.
The clocks claimed to be antique, all over 100 years of age and entered in subheading 9706.00.0060, HTSUS, are all classified in subheadings 9105.29.5000 or 9105.99.6000, HTSUS, depending on whether they are wall clocks or other than wall clocks.
The clocks with new cases and movements claimed to be antique are classified in subheadings 9105.29.5000 or 9105.99.6000, HTSUS, depending on whether they are wall clocks or other than wall clocks.
The clocks with “old” (not antique) movements and cases claimed to be antique are classified in subheadings 9105.29.5000 or 9105.99.6000, HTSUS, depending on whether they are wall clocks or other than wall clocks.
Based upon the information provided, imported clocks of foreign origin that are classified in subheadings 9105.29.5000 or 9105.99.6000, depending on whether they are wall clocks or other than wall clocks, are required to be marked in accordance with the special marking requirements for clock cases set forth in Additional U.S. Note 4, Chapter 91, HTSUS. Therefore, the issuance of the Notice to Mark/Redeliver (CF 4647) was proper. Accordingly, the subject protest should be denied in full. The merchandise at issue must marked in compliance with the provisions of Note 4, exported, or destroyed, pursuant to 19 U.S.C. 1304(h) and 19 CFR 134.51.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550- 065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant attached to the Form 19, Notice of Action, no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs
Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Myles B. Harmon
Commercial Rulings Division