Reconsideration of HQ 731403 (July 31, 1989)

HQ 732646 December 26, 1989 MAR-2-05 CO:R:C:V 732646 KG CATEGORY: Marking Chief, National Import Specialist Branch 1 New York Seaport RE: Reconsideration of HQ 731403 (July 31, 1989) Dear Sir: This is in response to your memorandum of August 10, 1989, (MAR-2-05:S:N1:234) requesting reconsideration of HQ 731403 (July 31, 1989). FACTS: HQ 731403 was a decision on an Application for Further Review of Protest No. 3801-7-002039 which involved marking duties assessed against a shipment of 150,000 copies of a 16 page program printed in Canada. The decision states that although a violation of 19 U.S.C. 1304 occurred, the entry should be liquidated without the imposition of marking duties because the importer had not been warned. ISSUE: Whether 19 U.S.C. 1304(f) allows for the waiver of marking duties because of the lack of a timely warning. LAW AND ANALYSIS: As you noted in your memorandum, section 304(f) of the Tariff Act of 1930, 19 U.S.C. 1304(f), provides that 10% marking duties shall be levied, collected and paid upon a finding that an imported good is not properly marked with the country of origin and such article is not exported, destroyed or remarked in accordance with the law. This duty "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." The plain meaning of the language of the statute itself clearly is mandatory in tone and provides no leeway for remission or mitigation of marking duties for any reason. Further, we note that section 12.05(1) of the U.S. Customs and International Trade Guide (1989) interprets 19 U.S.C. 1304(f) to mean that assessment of the marking duty is not eligible for remission or mitigation under 19 U.S.C. 1618, which applies only to Customs penalties. Therefore, if a violation of section 304 of the Tariff Act of 1930, as amended, is found, and the article is not exported, destroyed or properly marked prior to liquidation, marking duties are mandatory. HQ ruling 731403 contained a discussion of whether or not the country of origin marking of the imported article involved in that case was legible and conspicuous. The New York Import Specialist felt that the country of origin marking was legible and conspicuous and noted that the country of origin marking probably would not confuse an ultimate purchaser. After examining the sample again, we concur that the country of origin marking is conspicuous. Therefore, HQ ruling 731403 is modified to clarify our position that the country of origin marking in that case is conspicuous. Therefore, there is no country of origin marking violation and no marking duties should be assessed. HOLDING: HQ ruling 731403 is modified to clarify our position that the country of origin marking in that case is conspicuous. Since there is no violation of 19 U.S.C. 1304, no marking duties can be assessed. Sincerely, John Durant Director, Commercial Rulings Division cc: Robert Murphy Chicago Office