HQ 0734078 - Application for Further Review of Protest No. 0201-90-000245 concerning country of origin marking of imported work benches and hardware; marking duties; false certification; 19 U.S.C. 1304(f) - United States International Trade Commision Rulings

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HQ 734078

September 30, 1991

MAR-2-05 CO:R:C:V 734078 AT

CATEGORY: MARKING

District Director of Customs
St. Albans, Vermont 05478

RE: Application for Further Review of Protest No. 0201-90-000245 concerning country of origin marking of imported work benches and hardware; marking duties; false certification; 19 U.S.C. 1304(f)

Dear Sir:

This is in response to Protest no. 0201-90-000245 and the Application for Further Review dated September 14, 1990, submitted by A.N. Deringer, Inc. (broker), on behalf of Trend Lines, Inc., the importer, against your decision to assess marking duties in connection with an entry of imported work benches and vice hardware.

FACTS:

Entry for 551 work benches and 400 pieces of vice hardware imported from West Germany was made on January 22, 1990 (Entry No. 551-1146405-7). On January 22, 1990, a notice of marking/redelivery (CF 4647) was issued because there was no country of origin marking on the merchandise or the containers as required under 19 U.S.C. 1304 and 19 CFR 134.11. The importer signed the 4647 on January 25, 1990 and returned it to Customs on January 30, 1990, but neglected to complete the certification block indicating that the merchandise had been marked. On April 5, 1990, Customs sent back the notice to the importer to have the certification block completed. The completed form was returned to Customs on April 10, 1990, in which the importer certified that the merchandise had been marked. However, on April 11, 1990, when Customs officers visited the importer's warehouse where the subject merchandise was allegedly being stored, they were informed by the importer that the merchandise had already been shipped. On May 9, 1990, Trend Lines sent a letter to

Customs advising it that 782 of the total 991 items were still in stock at one of Trend Lines' other warehouses. On May 16, 1990, Customs examined the remaining 782 items in stock and confirmed that they were properly marked with the country of origin. Marking duties in the amount of 10 percent of the dutiable value of the merchandise which was not available for inspection were assessed.

Protestant claims that the assessment of marking duties was improper because the merchandise in question had been marked promptly and accurately after importation. Protestant also claims that assessing marking duties in this case, creates an undue hardship in that Customs did not respond to the marking notice until approximately three months after the importer returned it to Customs on January 25, 1990.

ISSUES:

Whether the assessment of marking duties is proper in this case.

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 in to 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 manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. 19 U.S.C. 1304(f) provides that 10 percent marking duties shall be levied, collected and paid if an imported article is not properly marked with the country of origin at the time of importation and such article is not exported, destroyed or properly marked under Customs supervision prior to liquidation. Under this provision, such duties shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause.

Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.51, Customs Regulations (19 CFR 134.51), provides that when articles or containers are found upon examination not to be legally marked, the district director shall notify the importer on Customs Form 4647 to arrange with the district director's office to properly mark the article or container or to return all released articles to Customs custody for marking, exportation or destruction. This section further
provides that the identity of the imported article shall be established to the satisfaction of the district director. Section 134.52, Customs Regulations (19 CFR 134.52), allows a district director to accept a certification of marking supported by samples from the importer or actual owner in lieu of marking under Customs supervision if specified conditions are satisfied.

In HQ 731775 (November 3, 1988), Customs ruled that two prerequisites must be present in order for it to be proper to assess marking duties under 19 U.S.C. 1304(f). These two prerequisites are:

1. the merchandise was not legally marked at the time of importation, and

2. the merchandise was not subsequently exported, destroyed or marked under Customs supervision prior to liquidation

In this case, the assessment of marking duties is proper due to the fact that both prerequisites cited above are present. The record indicates that the subject merchandise was not legally marked at the time of importation on January 22, 1990. The marking notice issued by Customs on January 22, 1990 indicates that neither the articles nor their containers were marked. Protestant has not provided any proof that the merchandise which was not available for inspection by Customs was properly marked under Customs supervision prior to liquidation. In the absence such proof, we find that the merchandise was not properly marked under Customs supervision.

Protestant claims that the assessment of marking duties creates an undue hardship due to the fact that Customs did not respond to the marking notice until approximately three months after protestant returned the CF 4647 to Customs and that the marking duties should be refunded. We disagree. First, as indicated above, 19 U.S.C. 1304(f) specifies that marking duties shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause. Second, we note that protestant failed to complete the required certification block certifying that the goods had been marked and did not submit a sample of the merchandise. Any delay in the process was caused largely by the protestant. Moreover, a Customs official went to examine the merchandise one day after the form was properly completed by protestant and the merchandise was not available for inspection.

HOLDING:

The assessment of marking duties in this case was proper due to the fact that the merchandise was not legally marked at the time of importation nor was it subsequently marked under

Customs supervision prior to liquidation. Accordingly, the protest should be denied. A copy of this decision should be attached to the Customs Form 19, to be sent to the protestant.

Sincerely,

John Durant, Director

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