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HQ 733278

December 27, 1990

MAR-2-05 CO:R:C:V 733278 KG


Area Director of Customs
J.F.K. Airport
Building 178
Jamaica, N.Y. 11430

RE: Application for Further Reivew of Protest No. 1001-9-007345 concerning country of origin marking of imported silk jackets; marking duties; false certification

Dear Sir:

This is in response to Protest no. 1001-9-007345 dated December 15, 1989, and the Application for Further Review dated December 15, 1990, on behalf of Jim Benjamin, the importer, against your decision to assess marking duties in connection with an entry of imported women's silk jackets.


Entry for 52 women's silk jackets imported from India was made on October 3, 1989. On October 6, 1989, a notice of marking/redelivery was issued because there was a label sewn in the jackets which concealed the country of origin marking and because there was no textile fiber content label. The importer signed a certification on October 19, 1989, which stated that the country of origin marking and textile fiber identification violations had been corrected and submitted a sample to Customs that had been corrected. However, on October 26, 1989, when Customs officers visited the clothing boutique where the jackets had been taken to verify the certification, they were unable to do so. The Customs officers found that the garments had been removed from the original cartons and placed on racks throughout the store. They further found that many of the garments in the store did not have the marking corrected although a seamstress was in the process of correcting labels on some jackets. It was not clear that the jackets being worked on were the ones from this entry. Although the importer asserts that the jackets were properly marked within 30 days of the redelivery notice, no supporting material was submitted to substantiate the importer's position. Subsequently, a claim for liquidated damages for failure to redeliver and marking duties were assessed.


Whether liquidated damages and marking duties should be assessed when the importer has certified that marking violations have been corrected however no proof has been submitted to verify that the marking violations had been corrected at the date of certification.


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. 19 U.S.C. 1304(f) provides that 10% marking duties shall be levied, collected and paid upon a finding that an imported good is not properly marked with the country of origin and such article is not exported, destroyed or remarked in accordance with the law.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.51, 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.

Counsel claims that marking duties were improperly assessed because the jackets were properly marked within 30 days of the issuance of the CF 4647. There is a good discussion in HQ 731775 (November 3, 1988), of when it is proper to assess marking duties in accordance with 19 U.S.C. 1304(f). There are two prerequisites for the imposition of marking duties: (1) the merchandise was not legally marked at the time of entry and (2) the merchandise was not subsequently marked under Customs supervision prior to liquidation. As stated above, 19 CFR 134.51(c) allows the district director to accept a certificate of marking in lieu of marking under Customs supervision. "In such case, the date of acceptance would constitute the date the goods were marked under Customs supervision."

Customs Ruling 620633 (June 20, 1986), presented a very similar fact pattern to this case. This ruling was written in response to a request for guidance from a district director in cases involving merchandise entered under the immediate delivery procedure. The ruling assumed these facts: merchandise was found on initial inspection not to be properly marked, the importer was granted permission to remark on its premises, a CF 4647 was returned by the importer within the 30-day period certifying that the marking has been corrected, but Customs discovered upon inspection, before the 30- day period had elapsed, that the merchandise was not legally marked. Customs concluded that "the importer would be liable for additional marking duties pursuant to 19 U.S.C. 1304(f) at the time it falsely certifies that the merchandise has been properly marked in accordance with law. The falsehood tolls the maximum 30-day period it had to bring the merchandise into compliance, and we shall not reward the deceptive importer-after being caught-the remainder of the period as grace to mark the merchandise properly without assessment of the marking duties."

In this case, Customs discovered upon inspection that the imported goods had not been legally marked and that the importer had falsely certified that the merchandise was properly marked. This falsehood would toll the 30-day statutory period and the importer would be liable for marking duties. The certification process is provided for in the Customs Regulations to provide an alternative and usually less expensive way for an importer to correct country of origin marking violations. Otherwise, imported goods found improperly marked must be marked under Customs supervision. The ability of Customs to rely on the importer's certification is imperative if Customs is not going to require direct Customs supervision of all country of origin marking violations. Based on HQ 620633 and the above analysis, we find that the marking duties were properly assessed in this case.

Counsel for the importer also claims that the merchandise should be released and the redelivery notice cancelled since he asserts that the jackets were properly marked within 30 days of its issuance. No supporting material was submitted to substantiate this claim. The Customs officers stated that the jackets were not segregated from other merchandise that was not properly marked. There is no proof that the jackets were properly marked. We are not persuaded that the jackets in question were properly marked within 30 days of the redelivery notice. Because the proper marking of the jackets has not been proven, we do not need to reach the question of whether the redelivery notice should have been cancelled if the jackets had been properly marked after the false certification but within 30 days of the issuance of the CF 4647.


The redelivery notice was properly issued and the marking duties were properly assessed. 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.


Marvin M. Amernick
Chief, Value, Special Programs

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