Application for Further Review of Protest No. 1001-7-003992

HQ 731692 July 19, 1989 MAR-2-05 CO:R:C:V 731692 KG CATEGORY: Marking Area Director of Customs JFK Airport, Bldg. 178 Jamaica, New York 11430 RE: Application for Further Review of Protest No. 1001-7-003992 Dear Sir: This protest, dated March 23, 1987, is against a finding that imported cotton blouses were not properly marked with the country of origin and the assessment of 10% marking duties. FACTS: Under entry no. 86-652154-5 of June 27, 1986, Ind Fashions of N.Y. imported women's cotton blouses from India. A marking notice was issued July 7, 1986, requiring the importer to either mark hang tags with the country of origin or remove the hang tags. The import specialist noted that the hang tags attached to the garments had a New York address on them. The importer certified on July 14, 1986, that he had complied with the notice. Upon examination by ISET-NY Seaport on August 7, 1986, only 17 cartons of the 302 carton shipment had not been released and the remaining 17 cartons were not in compliance with the country of origin marking statute. The importer's position is that the marking in the neck of the blouses satisfies the country of origin marking requirement. The importer does not acknowledge the presence of the hang tags. The Customs inspector noted that the 17 cartons were not in compliance with 19 U.S.C. 1304 and retained a sample of the improperly marked goods. 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 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. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., other than the name of the country or locality in which the article was manufactured or produced, appears on an imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in,""Product of," or other words of similar meaning. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the article. Imported garments that have hang tags with U.S. addresses attached are required by 19 CFR 134.46 to have the country of origin marked on the hang tag in close proximity to the U.S. address. This requirement is in addition to the requirement set forth in a Customs Circular letter published as T.D. 54640(6), which held that on and after October 1, 1958, wearing apparel such as shirts, blouses, coats, sweaters, etc. must be legibly and conspicuously marked with the name of the country of origin by means of a fabric label sewn or otherwise permanently affixed on the inside center of the neck midway between the shoulder seams or in that immediate area or otherwise permanently marked in that area in some other manner. While the blouse may have been properly marked with the country of origin on the garment, because of the presence of a hang tag indicating a U.S. city, the possibility of misleading or deceiving the ultimate purchaser exists as to the actual origin of the garment. Therefore, Customs correctly advised the importer that to comply with 19 CFR 134.46, the hang tag would have to be marked with the country of origin of the garment in close proximity and in at least a comparable size to the name of the U.S. city or, in the alternative, to remove the hang tags from the garments. The importer certified to Customs that he complied with the notice. In this case, the importer does not acknowledge the presence of a hang tag. However, the Customs inspector asserted that there was a hang tag on the garment and retained a sample garment which has a hang tag atached to it. Although the importer certified that he would properly mark the hang tags or remove them from the garments, he did not submit any evidence or proof that the garment did not have a hang tag or that the hang tag was removed. HOLDING: The assessment of marking duties was proper because the blouses were not marked in accordance with 19 U.S.C. 1304 and 19 CFR 134.46. In view of the foregoing, the protest should be denied. A copy of this ruling should be attached to the Form 19, Notice of Action, to be sent to the importer. Sincerely, Marvin M. Amernick Chief, Value, Special Programs and Admissibility Branch