HQ 0733680 - Application for Review of Protest Numbers 5501-88-00050 and 5501-88-00051 Dated January 4, 1988 - United States International Trade Commision Rulings

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HQ 733680

September 30, 1991

CATEGORY: MARKING

MAR 2-05 CO:R:C:V 733680 RSD
Assistant Regional Commissioner of Customs (Operations) Houston, Texas 77057

RE: Application for Review of Protest Numbers 5501-88-00050 and 5501-88-00051 Dated January 4, 1988

Dear Sir:

This is in response to your memorandum dated February 27, 1990, (PRO-2-06-0:CO JL), requesting our review of the issue raised in the above referenced protest.

FACTS:

Protestant is challenging the assessment of 10 percent marking duties in connection with the importation of three shipments of 35mm cameras from Taiwan. The entries for this merchandise are as follows: Entry #836-00037888-7, January 7, 1987; Entry #836-0002179-0, April 17, 1987; and Entry #8360005216-7, May 20, 1987. The three shipments of cameras were released without examination. At the end of May, 1987, a sample of the camera was received from the importer. Based on this sample, a determination was made that the country of origin marking on the container "Made in Taiwan National Headquarters in U.S.A." was misleading. The marking on the camera itself, however, was determined to be acceptable.

On June 1, 1987, Customs issued two marking notices (CF 4647's) for the first two entries, which indicated that the marking on the containers of the camera was misleading and that this information should be printed on two separate lines. On June 8, 1987, Customs amended the CF 4647's to indicate that the marking was acceptable provided a comma was inserted i.e., "Made in Taiwan, National Headquarters in U.S.A." A second CF 4647 notice was issued on June 24, 1987, for the entry made on May 20, 1987.

Headquarters issued ruling HQ 730647 on August 16, 1987, indicating that the marking on the camera box was confusing, but that the confusion could be eliminated by putting the two phrases on separate lines. A notice (CF 29) indicating that marking duties were due at the rate of 10 percent for the three entries was issued on August 25, 1987. In another letter dated September 16, 1987, Customs Headquarters indicated that the importer would be allowed to utilize the supply of boxes with the unacceptable marking, provided that the words "Made in Taiwan" were separated from "National Headquarters in U.S.A." by a comma, for a period of two months from the date of the Headquarters letter. After the two month period, the phrase "Made in Taiwan" had to be on a separate line from the words "National Headquarters in the U.S.A." or the country of origin marking had to be accomplished by other means which met the requirements of 19 CFR 134.46.

The importer filed a protest claiming that the three shipments in question were marked with the country of origin as approved by Customs Headquarters i.e., Made in Taiwan, National Headquarters in U.S.A. Because of a printer's error, the importer indicates that the comma was omitted on subsequent shipments. The sample submitted to Customs allegedly was taken from one of these subsequent shipments. The importer also contends that the merchandise is properly marked with the country of origin even if the comma is omitted.

ISSUE:

Should marking duties be assessed when a marking notice was issued over 30 days after the entries in question and there is no evidence that Customs examined the shipments, retained samples from the shipments, or requested samples from the importer within 30 days after entry?

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. Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., other than the name of the country or locality in which the article was manufactured or produced, appears on an imported article or its container, 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. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser of the actual origin of the imported goods.

Although we have previously ruled that the marking, "Made in Taiwan National Headquarters in U.S.A.", on the camera boxes was unacceptable and did not meet the requirements of 19 U.S.C. 1304, the shipments in question were never examined and there is no evidence that Customs retained or requested samples from these shipments. Furthermore, Customs did not issue the CF 4647 demanding marking/ redelivery, in accordance with 19 CFR 141.113(a), within 30 days after the date of entry or examination. The first marking notice was issued on June 1, 1987 for 2 entries filed on January 7, 1987, and April 17, 1987. The second marking notice was issued on June 24, 1987, for entry made on May 20, 1987. Because there was a considerable lapse of time between the dates of entry and the dates when the marking notices were issued, it is reasonable to believe that the shipments had gone to the market and the importer would not have had representative samples from the shipments in question. Without samples or other evidence, there is no way to establish that the marking on the boxes from the particular shipments in question was defective. There is no evidence to dispute the importer's claim that the boxes were in fact properly marked and that the defective marking on the sample was caused by a printing error after the entries for the cameras were made. Because no sample were obtained by Customs from the shipments in question, and no sample was requested within 30 days from entry at this point there is no way to ascertain how the boxes were marked and assessing marking duties would be inappropriate.

HOLDING:

The importer's protest on the assessment of 10 percent marking duties is granted and the assessment of marking duties should be cancelled. A copy of this decision should be attached to Customs Form 19 to be sent to the protestant.

Sincerely,

John Durant, Director

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