HQ 559620

May 17, 1996

MAR-2-05 RR:TC:SM 559620 DEC

CATEGORY: Marking

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