MAR-2-05 RR:TC:SM 559620 DEC
Port Director of Customs
610 South Canal Street
Chicago, IL 60607
RE: Application for Further Review of Protest No. 3901-95-101103
concerning
country of origin marking of imported neckties and scarves;
Marking duties;
19 U.S.C. 1304(f); 19 CFR 134.51; 19 CFR 134.52; HRL 731775;
HRL 733097;
19 CFR 141.113; Textile Fiber Products Identification Act
Dear Madam:
This is in reference to Protest No. 3901-95-101103 and the
Application for Further Review dated May 8, 1995, timely
submitted by Marianne P. Basham, Esq., on behalf of Corporate
Textiles, Incorporated, against your decision to assess marking
duties in connection with an entry of neckties and scarves from
Korea.
FACTS:
On April 15, 1994, Corporate Textiles, Incorporated
(Corporate Textiles) entered certain neckties and scarves. At
the time of importation, each article had a fabric sewn-in label
with the words "100% SILK" printed on the front side of the label
and the words "MADE IN KOREA printed on the back side. At the
time of importation, the Customs inspector and import specialist
determined that the neckties and scarves were not properly marked
because the country of origin did not appear on the "front" side
of the sewn-in label. Customs issued a marking notice of Customs
Form (CF) 4647 on April 15, 1994, citing 19 CFR 141.113, with a
request for redelivery on May 15, 1994. Since redelivery of the
merchandise did not occur, Customs assessed a claim for
liquidated damages. You state that Customs assessed 10% marking
duties for the alleged marking violation and the entry was
liquidated on February 24, 1995.
ISSUE:
Was the assessment of marking duties proper against the
neckties and scarves that had a fabric sewn-in label with the
words "100% SILK" printed on the front side of the label and the
words "MADE IN KOREA" printed on the back side?
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 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 United States the
English name of the country of origin of the article. Section
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 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 port director shall
notify the importer on Customs Form (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. 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.
Section 1304(f) states that marking duties "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." See
C.S.D. 92-32 (Headquarters Ruling Letter (HRL) 734151, dated
April 6, 1992). As noted by the United States Customs Court in
A.N. Deringer, Inc. v. United States, 51 Cust. Ct. 21, C.D. 2408
(1963),
those who import goods into the United States accept
certain
responsibilities that have been laid on them by
Congress. One
such responsibility, and an important one, is to see
that imported
merchandise of foreign origin is properly marked to
show the
country of origin, before it enters into the commerce
of the
United States.
In HRL 731775, dated November 3, 1988, 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.
In this case, the assessment of marking duties on the
neckties and scarves would be appropriate if there was a
violation of 19 U.S.C. 1304. The neckties and scarves have a
fabric label that is sewn into the silk articles. The front side
that is most readily exposed to the ultimate purchaser says "100%
SILK" and the back side which can be observed by flipping up the
label has printed on it the words "MADE IN KOREA."
In HRL 733907, dated October 15, 1991, Customs addressed the
propriety of the country of origin marking of various dresses,
skirts, and blouses and the propriety of assessing marking
duties. In this ruling, Customs cited the requirements of 19
U.S.C. 1304 as well as the Textile Fiber Products Identification
Act which provides, in part, that a textile article's country of
origin shall be set out on the same side of the label as the
other required information, and must be clearly legible and
readily accessible to the prospective purchaser. Also, in that
ruling, Customs stated that the back side of the sewn-in tag is
not a conspicuous location for the placement of country of origin
marking within the meaning of 19 U.S.C. 1304 and that in
accordance with T.D. 54640(6) (1958), the sewn-in tag is the only
location which is acceptable to Customs for the marking of
shirts, blouses, coats, sweaters, and the like. This protest,
however, pertains to neckties and scarves which are accessory
articles rather than wearing apparel with a neck opening, such as
shirts, coats, and sweaters which are included within the scope
of T.D. 54640.
Accordingly, it is Customs' position that the
conspicuousness requirement of 19 U.S.C. 1304 does not mandate
that the neckties and scarves be marked on the front-side of the
fabric label that is sewn to the article. Upon our own
examination of the sample necktie and scarf, we are satisfied
that, for purposes of 19 U.S.C. 1304, the country of origin on
the back of the sewn-in label may be easily found by a casual
examination by an ultimate purchaser. Accordingly, the articles
were properly marked when imported for purposes of 19 U.S.C.
1304.
Pursuant to section 141.113, Customs Regulations (19 CFR
141.113), textile and apparel articles are required to be marked
or labeled pursuant to the Textile Fiber Products Identification
Act (15 U.S.C. 70). Section 303.16(b), Federal Trade Commission
Regulations (15 CFR 303.16(b), provides, in pertinent part, that
the fiber content, the registered identification number or
manufacturer's name, and the country where the product was
manufactured shall all appear conspicuously on the same side of
the label. We recommend that the importer contact the Federal
Trade Commission, Division of Enforcement, 6th and Pennsylvania
Avenue, N.W., Washington, D.C. 20508, as to whether the marking
for the neckties and scarves apparel satisfies such requirements.
Since we have concluded that the neckties and scarves were
legally marked pursuant to the 19 U.S.C. 1304 at the time of
importation, the assessment of marking duties was inappropriate.
However, since the importer failed to redeliver the articles in
compliance with the marking notice, the claim for liquidated
damages was proper.
HOLDING:
The assessment of marking duties in this case was not proper
due to the fact that this merchandise was marked at the time of
importation for purposes of 19 U.S.C. 1304. Accordingly, the
protest should be allowed with respect to the assessment of
marking duties.
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
Tariff Classification and Appeals
Division