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HQ 561704





September 28, 2000

MAR-2-05 RR:CR:SM 561704 BLS

CATEGORY: MARKING

Port Director
1000 Second Avenue
Seattle, WA 98104

RE: Application for Further Review of Protest No. 3001-00-100121; marking duties

Dear Sir:

This is in reference to your memorandum received in this office April 11, 2000, forwarding an application for further review of Protest No. 3001-00-10021 timely filed on behalf of Silicon Valley Components, Inc.

FACTS:

A Notice of Marking/Redelivery (CF 4647) was issued by your office to protestant on June 4, 1999, for the reason that the imported goods (desktop PCs) were not marked with the country of origin. As the form was not returned as directed nor samples submitted and the goods were released into the commerce without Customs inspection to determine if the goods were properly marked with their country of origin, marking duties were assessed. Liquidated damages were also assessed for failure to redeliver the merchandise.

The CF 4647 includes instructions to the importer that the “merchandise must be retained until you are notified by Customs that corrective action is acceptable.” The record also indicates that the merchandise was moved from Seattle to the protestant’s customer in California against the express instructions of the Customs officer handling the matter.

ISSUE:

Whether marking duties were properly assessed against the subject merchandise.

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 United States shall

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be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in a way that indicates to the ultimate purchaser in the United States the English name of the country of origin of the article. Merchandise which is not legally marked at the time of importation is subject to a 10 percent ad valorem marking duty.

Specifically, 19 U.S.C. 1304(h) provides that if at the time of importation any article is not properly marked, 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 is to be assessed upon the article a duty of 10 per centum ad valorem, which is deemed to have accrued at the time of importation. The statute further provides that such duty is not subject to remission for any reason. See also section 134.2, Customs Regulations (19 CFR 134.2).

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 Customs Form 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. Section 134.51 further provides that the identity of such imported articles 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 Headquarters Ruling Letter (HRL) 731775 dated November 3, 1988, Customs ruled that two prerequisites must be present to assess marking duties under 19 U.S.C. 1304(f). These two prerequisites are:
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.

Protestant does not dispute the fact that the merchandise was not legally marked at the time of importation, and that the merchandise was not subsequently exported, destroyed, or marked under Customs supervision prior to liquidation. However,

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protestant contends that there should be a reduction in marking duties as the products were marked after importation and before receipt by the ultimate purchaser. In support of this claim, counsel submits an affidavit signed by the importer’s shipping manager, who states that he viewed and participated in marking the shipment at the importer’s warehouse with the country of origin using a stamp on the outside boxes of the desktop PCs. However, the marking was not performed under Customs' supervision, prior to liquidation. Thus, Customs is unable to verify that in fact marking was performed, and that such marking was in conformity with 19 U.S.C. 1304.

HOLDING:

The assessment of marking duties 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. Therefore, you are instructed to deny the protest 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 attached to the Form 19, Notice of Action, no later than 60 days from the date of this letter. Any reliquidation of the entries 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 Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,
John Durant, Director
Commercial Rulings Division

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