                       Slip Op. 02-149

           UNITED STATES COURT OF INTERNATIONAL TRADE

         BEFORE: HON. RICHARD W. GOLDBERG, SENIOR JUDGE




STEMCOR USA, INC.,

                 Plaintiff,

          v.                        Court No. 00-01-00048

UNITED STATES,

                 Defendant.



[Defendant’s Motion for Summary Judgment is denied in part and
granted in part.]

                                          Dated: December 17, 2002

Follick & Bessich (Glenn H. Ripa, John A. Bessich, and Don M.
Obert) for plaintiff Stemcor USA, Inc.

Robert D. McCalllum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge; Aimee Lee, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice; Beth C. Brotman, Office of Assistant Chief Counsel,
International Trade Litigation, United States Customs Service, of
Counsel, for defendant United States.

                              OPINION

     GOLDBERG, Senior Judge: This case involves the proper

marking of steel bars imported from Turkey.   Defendant moves for

summary judgment against plaintiff Stemcor USA, Inc. (“Stemcor”),

pursuant to U.S.C.I.T. Rule 56.   Stemcor asserts that it is

entitled to a marking exception because re-marking the steel bars
Court No. 00-01-00048                                         Page 2

is prohibitively expensive, and that the United States Customs

Service (“Customs”) impermissibly exceeded its discretion when it

issued a Notice of Extension for liquidation of the subject

entry.

                              Background

     This case involves entry number 110-09-0982052-1, which was

filed at the Port of San Juan, Puerto Rico on July 18, 1996.        The

merchandise was released to Stemcor on that same day.       It is

unclear from the papers submitted to the Court the procedure

under which the goods were released to Stemcor.    There is no

evidence of whether Stemcor requested immediate entry of the

goods without inspection, or whether the goods were conditionally

released to Stemcor.    The merchandise consisted of 16,957 bundles

of deformed concrete reinforcing steel bars made in Turkey and

imported by Stemcor.    The bars were individually marked with the

letters “TR” at one end and were transported in bundles held

together with steel straps.    Tags reading “Made in Turkey” were

attached at both ends of each bundle.

     At the repeated prodding of a Stemcor competitor, Customs

visited a Stemcor customer on or before August 13, 1996, to

examine a portion of the subject merchandise.1    Customs


     1
        At oral argument before the Court on September 25, 2002,
Customs first informed the Court and Plaintiff that Customs’
decision to examine the subject merchandise was due to repeated
allegations by a Stemcor competitor that the merchandise was
improperly marked. Customs’ reason for examining the merchandise
Court No. 00-01-00048                                      Page 3

determined that the individual bars were not properly marked with

the name of their country of origin.2   On August 13, 1996,

Customs issued Customs Form 4647, Notice of Marking, indicating

that Stemcor should re-mark the merchandise in conformity with 19

U.S.C. § 1304(a), which requires that merchandise be marked, as

legibly, indelibly, and permanently as the nature of the article

will permit, to indicate to an ultimate purchaser in the United

States the English name of the country of origin.   Customs also

indicated that its supervision of the re-marking was not

required.   The Notice directed that upon completion of the re-

marking, Stemcor should complete a certification form and return

it to Customs.   Stemcor responded in writing to the Notice of

Marking on August 22, 1996, indicating its belief that marking

the individual bars with the country of origin was unnecessary

under applicable statutes and regulations.   It is apparent

through several letters to Stemcor’s customers dated August 22,

1996, that Stemcor had already released many of the bundles into

the U.S. market by August 13, 1996; however, it is unclear from

the papers before the Court the exact number of bundles of bars



is likely not a material fact in this case, but Customs’ behavior
is very troubling to the Court. Through Customs’ actions, 26
days had passed after entry and release of the subject
merchandise before Customs issued the Notice of Marking.
     2
        Stemcor now concedes that the marking “TR” does not
properly indicate the country of origin under 19 U.S.C. §
1304(a).
Court No. 00-01-00048                                     Page 4

that had been sold and entered the U.S. market by the date of the

Notice of Marking.

     On June 14, 1997, Customs issued a Notice of Extension to

Stemcor, which allowed Customs additional time to liquidate the

entry before it would have been liquidated by operation of law on

its one-year anniversary date, July 18, 1997.   Customs liquidated

the subject entry on July 28, 1997, and assessed ten percent

marking duties as a result of Stemcor’s failure to re-mark the

merchandise.

     Stemcor filed a timely protest and application for further

review on October 14, 1997, claiming that the subject merchandise

was properly marked within the meaning, spirit, and intent of §

304 of the Tariff Act of 1930.   Stemcor also claimed it was

exempted from the marking requirement under 19 C.F.R. § 134.32(o)

because re-marking was prohibitively expensive, and that the

entry liquidated by operation of law as entered on its one-year

anniversary date under 19 U.S.C. § 1504.3

     In response, Customs issued Headquarters Ruling Letter

561008 on August 4, 1999.   Customs reliquidated the entry with

respect to 2,117 of the bundles without the assessment of ten




     3
        An entry liquidated by operation of law on its one-year
anniversary date is liquidated at the rate of duty, value,
quantity, and amount of duties assessed at the time of entry by
the importer of record. 19 U.S.C. § 1504(a) (2000).
Court No. 00-01-00048                                        Page 5

percent marking duties.4   However, the remaining 14,840 bundles

in the entry were denied relief, and are the subject of this

action.

                        Standard of Review

     Congress has directed the Court of International Trade to

presume that Customs’s decisions are correct.    28 U.S.C. §

2639(a)(1) (2000); see also St. Paul Fire & Marine Insurance Co.

v. United States, 12 Fed. Cir. (T) 1, 7, 6 F.3d 763, 768 (1993);

Brother International Corp. v. United States, 26 CIT __, Slip Op.

02-80 at 5 (July 31, 2002).   The statutory presumption of

correctness is “a procedural device that is designed to allocate,

between the two litigants in a lawsuit, the burden of producing

evidence in sufficient quantity.”   Brother International Corp.,

Slip Op. 02-80 at 5 (quoting Universal Elecs. Inc. v. United

States, 112 F.3d 488, 492 (Fed. Cir. 1997)).    To overcome this

presumption, a plaintiff must show by a preponderance of the

evidence that Customs’ decision was unreasonable.    St. Paul Fire

& Marine, 12 Fed. Cir. (T) at 7, 6 F.3d at 768.

     If a plaintiff is unable to produce sufficient evidence to

meet this burden, summary judgment may be appropriate.    Under

Rule 56 of the Rules of the Court of International Trade, summary

judgment is proper “if the pleadings, depositions, answers to


     4
        These bundles were reliquidated because Stemcor could
show that they were delivered to end consumers still bundled, and
consequently with the “Made in Turkey” tag.
Court No. 00-01-00048                                       Page 6

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”    Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).   A dispute is genuine “if the evidence is such that [the

trier of fact] could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment should be granted if a party “fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear

the burden of proof at trial.”    Celotex Corp., 477 U.S. at 322.

                             Discussion

     The government filed for summary judgment on both of

Stemcor’s claims.    Stemcor first claimed it is entitled to a

marking exception under 19 C.F.R. § 134.32(o) (2002) because the

cost of re-marking the merchandise after importation would have

been economically prohibitive.    Stemcor also claimed that Customs

abused its discretion when it issued a Notice of Extension for

liquidation of the subject entry.    Each of these arguments is

addressed in turn.
Court No. 00-01-00048                                      Page 7

     A.   There exist genuine issues of material fact that
          Customs’ denial of Stemcor’s request for a marking
          exception under 19 C.F.R. § 134.32(o) was
          unreasonable.

     Merchandise entering the commerce of the United States must

be marked, as legibly, indelibly, and permanently as the nature

of the article will permit, to indicate to an ultimate purchaser

in the United States the English name of the country of origin.

See 19 U.S.C. § 1304(a) (2000).   When merchandise is not marked

properly, § 1304(i) mandates the assessment of a ten percent

marking duty if the improperly marked merchandise is not

exported, destroyed, or re-marked under the supervision of

Customs prior to liquidation of the entry.   19 U.S.C. § 1304(i)

(2000); see also Frontier Insurance Co. v. United States, 26 CIT

__, __, 185 F. Supp. 2d 1375, 1379 (2002).   Merchandise may be

exempted from the marking requirement if it “cannot be marked

after importation except at an expense that would be economically

prohibitive.”   19 U.S.C. § 134.32(o).

     Customs sent Stemcor a Notice of Marking, indicating that

Stemcor must re-mark the bars and submit a certificate of re-

marking to Customs.   Under § 1304, Stemcor then had the option to

re-mark the bars as required, or export or destroy them.

However, by the date of the Notice of Marking Stemcor had already

released many of the bundles of bars into the U.S. market.

Stemcor released the remaining merchandise into commerce without

submitting a certificate of re-marking.   This is in contradiction
Court No. 00-01-00048                                      Page 8

to Customs’ instructions, which read, “WARNING: all merchandise

must be retained until you are notified by Customs that

corrective action is acceptable.”   See Complaint, Exhibit C,

Notice of Marking.

     In its complaint, Stemcor claims that it is entitled to a

marking exception under 19 C.F.R. § 134.32(o), on the grounds

that re-marking the bars is economically prohibitive.   Customs

argues in its summary judgment motion that because Stemcor had

already released the merchandise into the U.S. market, Stemcor is

precluded from claiming a re-marking exception under § 134.32(o).

According to Customs, because 19 U.S.C. § 1304(i) mandates that

re-marking is to take place “prior to the liquidation of the

entry covering the article,” it follows that any exception to

this requirement must be sought prior to liquidation of the entry

and prior to the release of the goods into the U.S. market.

Stemcor sought the exception at the protest stage, after

liquidation and after it released the bars into commerce, making

any re-marking of individual bars or bundles an impossibility.

Therefore, under Customs’ analysis, Stemcor is precluded from

claiming a re-marking exception under § 1304(i).

     The Court does not agree with Customs.   There is no time

limit for Stemcor to claim the re-marking exception under the

language of 19 C.F.R. § 134.32(o), nor any requirement this

exception must be claimed prior to liquidation of the entry.
Court No. 00-01-00048                                       Page 9

Significantly, there is no requirement in the regulations that a

claim for the re-marking exception must be made before the

merchandise is released into the U.S. market.    Therefore, Stemcor

can assert a claim for a re-marking exception under 19 C.F.R. §

134.32(o).

     Having timely applied for the exception, Stemcor must

demonstrate there are genuine issues of material fact as to

whether re-marking the bars is economically prohibitive.    An

importer is entitled to a marking exception if the importer can

show (1) that the cost of marking the subject merchandise after

importation would be economically prohibitive; and (2) that the

importer, producer, seller, or shipper did not fail to mark the

articles before importation in order to avoid meeting the

requirements of law.    Customs does not dispute that Stemcor’s

failure to mark the items before importation was not an attempt

to avoid the law.

     As to the first element of the marking exception, there are

genuine issues of material fact whether the proof submitted by

Stemcor is sufficient.    Stemcor suggested one option for re-

marking—attaching individual sticker labels to each bar—and set

forth cost figures allegedly associated with that method of re-

marking.   There were no estimates or invoices to support

Stemcor’s re-marking cost figures; nor did Stemcor provide cost

figures for any alternatives to attaching sticker labels to the
Court No. 00-01-00048                                      Page 10

bars.   However, the president of Stemcor claims in his affidavit

that “Stemcor has made bona fide inquiries with respect to the

expenses involved in the re-marking.”   Affidavit of Peter Blohm.

     Another issue of material fact is whether Customs’

reasonably considered Stemcor’s request for the re-marking

exception.   In denying the re-marking exception, Customs only

briefly discussed the exception and never commented on the

evidence submitted by Stemcor:

     The other exception that counsel raised in this case is
     19 CFR 134.32(o), which excepts from marking articles
     which cannot be marked after importation except at an
     expense that would be economically prohibitive. This
     exception is not available if the failure to mark was
     to avoid meeting the requirements of the law.

     The language of 19 U.S.C. 1304(f) clearly states that
     if the conditions for payment of marking duties exist,
     the marking duties “shall not be avoidable for any
     cause.” Since in this case, the goods were not
     properly marked when entered and the goods were not
     exported, destroyed, or re-marked under Customs
     supervision, we find that pursuant to 19 U.S.C. 1304(f)
     (1996), the exception set forth at 19 CFR 134.32(o) is
     inapplicable.

Headquarters Letter 561008, August 4, 1999, at 11.   Such an

interpretation of the regulations by Customs essentially

eliminates the exception in 19 C.F.R. § 134.32(o) from the

regulations.   Based on the foregoing discussion, genuine issues

of material fact exist as to whether Customs’ denial of Stemcor’s

claim for a re-marking exception was unreasonable.
Court No. 00-01-00048                                          Page 11

       B.    Customs acted reasonably in issuing a Notice of
             Extension for liquidation of the subject entry.

       Customs has considerable discretion in administering Customs

law.    Under 19 U.S.C. § 3, “[t]he Secretary of the Treasury shall

direct the superintendence of the collection of the duties on

imports as he shall judge best.”     See also National Corn Growers

Ass’n v. Baker, 6 Fed. Cir. (T) 70, 75-76, 840 F.2d 1547, 1554-55

(1988).     Customs may extend the entry liquidation period for up

to four years if it requires information “for the proper

appraisement or classification of the merchandise, or for

insuring compliance with applicable law, [that] is not available

to the Customs service.” 19 U.S.C. § 1504(b)(1) (2000).

Information that Customs needs is construed to include “whatever

is reasonably necessary” for proper appraisement or

classification, and includes information sought from within the

agency.     Detroit Zoological Soc’y v. United States, 10 CIT 133,

138, 630 F. Supp. 1350, 1356 (1986).

       There exists a narrow limitation on Customs’ discretion to

extend the period of liquidation, which arises “only when an

extension is granted . . . following elimination of all possible

grounds for such an extension.”     St. Paul Fire & Marine, 12 Fed.

Cir. (T) at 7, 6 F.3d at 768 (emphasis added).     Upon review,

Customs’ decision to extend a period of liquidation is entitled

to a presumption of correctness, unless the importer can prove by

a preponderance of the evidence that the decision was
Court No. 00-01-00048                                       Page 12

unreasonable.   28 U.S.C. 2639(a)(1) (2000); see also St. Paul

Fire & Marine, 12 Fed. Cir. (T) at 7, 6 F.3d at 768.

Accordingly, in this case Stemcor bears the burden of proof, and

must eliminate all possible grounds for the extension in order to

demonstrate that Customs abused its discretion.    Id.

     Stemcor argues that the information Customs sought was

available when the extension was issued, and that Customs was lax

in not requesting additional information of Stemcor.     However, 19

U.S.C. § 1504(b) does not specify that the information must come

from the plaintiff.   Thus, Customs may justify an extension of

liquidation even “if additional time is needed to obtain [ ]

internal advice and to consider it before making the

classification decision.”   Detroit Zoological Soc’y, 630 F.Supp.

at 1356-57 (emphasis added).

     Here, the evidence indicates that Customs was considering

the marking issue internally during the extension period.    First,

Customs was internally evaluating Stemcor’s position that the

goods were properly marked and that Stemcor’s customers were

aware that Turkey was the country of origin.   Second, Customs was

assessing the amount of marking duties, which is an appraisal

issue for which Customs may extend the liquidation period.       See

19 U.S.C. § 1504(b)(1).   Finally, Customs was ensuring Stemcor’s

compliance with applicable law, another basis upon which Customs

may extend the liquidation period.   Id.   That Customs sought this
Court No. 00-01-00048                                       Page 13

information internally, rather than from Stemcor, does not

constitute an unreasonable basis for issuing an extension.     See

Detroit Zoological Soc’y, 630 F.Supp. at 1356-57.

     Stemcor also contends that Customs did not need extra time

to get the aforementioned internal information, and that the

extension was the result of Customs’ laxity.   Stemcor cites the

fact that Customs had approximately 11 months to gather the

information it required, yet did not pursue the information until

almost 10 months after issuing the Notice of Marking.

Specifically, Stemcor premises its argument on its disbelief that

Customs officials were unable to discuss earlier whether the

letters “TR” were a sufficient country of origin marking.

     Stemcor’s claim of Customs’ laxity must fail for two

reasons.   First, there is no legal claim for laxity.   Rather,

Stemcor must show by a preponderance of the evidence that Customs

acted unreasonably; otherwise, the correctness of Customs’

decision to extend the liquidation period is presumed.    See St.

Paul Fire & Marine, 12 Fed. Cir. (T) at 7, 6 F.3d at 768.     Thus,

Stemcor must not only show that Customs was lax, but must show by

a preponderance of the evidence that it was unreasonably so.

     Stemcor also lacks sufficient proof that Customs acted

unreasonably.   Stemcor has not presented any evidence to support

its assertions that when the import specialist realized the one-

year liquidation deadline was arriving she rushed to gain
Court No. 00-01-00048                                       Page 14

additional time, or that the delay was caused by Customs’ laxity.

Moreover, Customs’ letter to the record, dated July 8, 1997,

indicates that Customs officials were actively considering the

marking issue.     See Defendant’s Motion for Summary Judgment,

Exhibit C.    That this document does not reference any other

conversations or ongoing discussions does not prove that Customs

was not considering the matter prior to issuing the Notice of

Extension.   Thus, Stemcor has failed to meet its burden of

showing that Customs had no reasonable basis for issuing the

extension.

     Finally, Stemcor argues that the letters “TR” so obviously

do not constitute sufficient country of origin marking under the

language of 19 U.S.C. § 1304, that Customs did not need any

additional time.    Stemcor cites Densten Felt & Hair Co. v. United

States, 1 Cust. Ct. 416 (1938), in which the initials “U.S.S.R.”

were insufficient to indicate country of origin of the subject

merchandise, in support of its argument.    However, since “TR” is

not an acceptable marking for Turkey, Customs arguably needed the

time to ensure Stemcor’s compliance with applicable laws.

Stemcor provides the Court with no evidence to refute this

reasonable basis for the extension.

     For the foregoing reasons, Stemcor has failed to eliminate

all possible grounds for Customs’ extension of the liquidation

period, and is thus unable to overcome the presumption of
Court No. 00-01-00048                                      Page 15

correctness afforded to Customs’ decisions.   Customs therefore

properly exercised its discretion to issue the Notice of

Extension.

                            Conclusion

     Stemcor has created genuine issues of material fact as to

whether Customs’ denial of Stemcor’s request for a marking

exception under 19 C.F.R. § 134.32(o) was unreasonable.

Therefore, Customs’ motion for summary judgment on that issue is

denied.   Stemcor has not created a genuine issue of material fact

that Customs’ decision to issue the extension was unreasonable.

Therefore, Customs’ motion for summary judgment on the issue of

the extension of the liquidation period is granted.




                          Richard W. Goldberg, Senior Judge



Date:     December 17, 2002
          New York, New York.
                             ERRATA

Stemcor USA, Inc. v. United States, Court No. 00-01-00048, Slip
Op. 02-149, issued December 17, 2002.

!    On page 15, after the sentence which reads “Therefore,
     Customs’ motion for summary judgment on the issue of the
     extension of the liquidation period is granted”

     insert the following sentence

     “The parties are to confer and contact chambers within
     thirty days to report on timing for a trial in this matter.”
