HQ 558939 - Application for Further Review of Protest No. 3004-94-100185 concerning country of origin marking of an imported hydraulic excavator; marking duties; 19 U.S.C. 1304(f) - United States International Trade Commision Rulings

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HQ 558939

November 3, 1995

MAR-2-05 R:C:S 558939 AT

CATEGORY: MARKING

Port Director of Customs
Blaine, Washington

RE: Application for Further Review of Protest No. 3004-94-100185 concerning country of origin marking of an imported hydraulic excavator; marking duties; 19 U.S.C. 1304(f)

Dear Sir:

This is in response to Protest no. 3004-94-100185 and the Application for Further Review dated October 6, 1994, submitted by Border Brokerage Co. Inc. ("Border") on behalf of Daewoo International (America) Corporation ("Daewoo"), against your decision to assess marking duties in connection with an entry for an imported hydraulic excavator.

FACTS:

A hyraulic excavator from Korea was imported into the U.S. on May 13, 1994. On May 14, 1994, a notice of marking/redelivery (CF 4647) was issued because there was no country of origin marking on the merchandise as required under 19 U.S.C. 1304. Customs issued a CF 29 (Notice of Action) on August 16, 1994, notifying of the assessment of marking duties in the amount of 10 percent of the appraised value of the merchandise for failure to properly mark the merchandise in accordance with section 1304. The entry was liquidated on September 9, 1994. On September 14, 1994, the importer signed the CF 4647 certifying that the merchandise had been marked and that the merchandise was still available for Customs to verify the marking. Customs inspected the merchandise on October 11, 1994, and certified that the merchandise was properly marked in accordance with the marking requirements of 19 U.S.C. 1304. Protestant claims that on May 17, 1994, it submitted photocopies of poleroid pictures to Customs which indicated that the merchandise had been properly marked with the country--Korea --and that the CF 4647 was not signed and submitted to Customs at that time because of an oversight due to logistical and personnel changes at Daewoo. Thus, protestant asserts that the assessment of marking duties was improper because the merchandise was properly marked under Customs Supervision, as certified by Customs on October 11, 1994, in accordance with the marking requirements of 19 U.S.C. 1304.

ISSUE:

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 port director shall notify the importer on CF 4647 to arrange with the port 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 port director. Section 134.52, Customs Regulations (19 CFR 134.52), allows a port 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 considered whther an importer was liable for marking duties under 19 U.S.C. 1304(f), if the merchandise was properly marked under Customs supervision after the date of liquidation of the entry. Customs ruled that two prerequisites must be present in order for marking duties to be properly assessed 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. (Emphasis added).

Since the merchandise was marked under Customs supervision after the date of liquidation of the entry, Customs held that the importer was liable for marking duties under 19 U.S.C. 1304(f). Similarly, in this case, the assessment of marking duties was 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 May 13, 1994. Moreover, although protestant was provided a notice to mark or redeliver the merchandise on May 14, 1994, protestant did not comply with the notice prior to liquidation of the entry. Although Customs accepted protestant's certification of the marking on October 11, 1994, this does not establish that the merchandise was marked prior to liquidation on September 9, 1994. Notwithstanding protestant's claim that the merchandise was properly marked on May 17, 1994, as indicated by photo copies of poleroid pictures submitted to Customs, the fact remains that the CF 4647 was not signed and submitted to Customs until September 14, 1994, five days after the entry was liquidated. We find no other evidence that this merchandise was subsequently exported, destroyed or properly marked with the country of origin prior to liquidation of the entry. Thus, there is no evidence to support even a presumption that the merchandise under the entry was properly marked prior to liquidation of the entry as required under 19 U.S.C. 1304(f).

HOLDING:

The assessment of marking duties in this case was proper due to the fact that this merchandise was not legally marked at the time of importation, nor is there evidence that it was subsequently marked under Customs supervision prior to liquidation of the entry. Accordingly, the protest should be denied in full.

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 no later than 60 days from the date of this letter. Any reliquidation of the entry 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 Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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