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HQ 733645

August 16, 1990

Mar-205 CO:R:C:V 733645 RSD

Category: MARKING

RE: Application for Further Review of Protest Number 3801-8-001284 Dated June 17, 198

TO : Regional Director
Commercial Operations Division
Chicago, Illinois 60603

FROM : Chief, Value, Special Programs and Admissibility Branch

SUBJECT : Application for Further Review of Protest Number 3801-8-001284 Dated June 17, 1988

Dear Sir:

This is in response to your memorandum dated May 30, 1990, (PRO-2-06:O:CO:OS), requesting our review of the marking issue raised in the above referenced protest. Protestant is challenging the assessment of marking duties in connection with the importation of 30,104 pieces of plastic flexible trap entered under cover of XXXXXXXXX dated February 18, 1988. Protestant argues that the marking duties should be canceled because the merchandise was eventually properly marked with its country of origin to meet the requirement of 19 CFR 134.11.

The record indicates that Customs issued a Notice of Marking/Redelivery (CF 4647) to the Protestant's customs broker, Peace Bridge Brokerage (PBB), on March 2, 1988. At end of the 30 day marking period, on April 2, 1988, neither evidence of marking nor a response was received. A Notice of Liquidated Damages and a Notice of Action were issued on April 18, and April 19, 1988, respectively. On May 2, 1988, the entry was liquidated with the assessment of 10% marking duties. Subsequently, on June 20, 1988, a marked sample was submitted to the Penalty Section. Protestant has submitted a photo copy of the country of origin marking on the sample.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C 1304), generally requires that every article of foreign origin (or its container) imported into the United States 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 any ultimate purchaser in the United States the English name of the country of origin of the article. This statutory requirement is set forth in 19 CFR 134.11.

With regard to the assessment of 10% marking duties in this case, we note that 19 U.S.C. 1304 (f) provides, in pertinent part, that if at the time of importation any article is not marked in accordance with this section, and if such article is not exported, destroyed or marked after importation (such exportation, destruction or marking to be accomplished under Customs supervision prior to the liquidation of the entry covering the article, and to be allowed whether or not the article has remained in continuous Customs custody), there shall be levied, collected and paid upon such article a duty of 10 per centum ad valorem, which shall be deemed to have accrued at the time of importation, shall not be construed to be penal, and shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause. This statutory requirement is set forth in 19 CFR 134.2.

Treasury Decision 89-48 published in the Customs Bulletin of May 3, 1989, provides guidelines for the cancellation of claims involving the failure to redeliver merchandise into Customs custody. IV.C.1. of these guidelines states that "If merchandise is marked outside the 30-day marking period and after liquidation of the entry, marking duties should be assessed and collected."

The evidence in the record indicates that the marked sample was submitted one month after liquidation of the entry and more than three months after issuance of the marking notice. Consequently, even if the unmarked merchandise in the shipment was properly marked with its country of origin after importation as depicted in the submitted photo copy, the assessment of marking duties of 10% was proper. Therefore the protest should be denied. A copy of this decision should be attached to the Customs Form 19, Notice of Action, to be sent to the protestant.

Marvin M. Amernick

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