HQ 562828 - Protest and Application for Further Review 5401-03-100021; liquidation; marking duties; CF-4647 endorsement - United States International Trade Commision Rulings

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HQ 562828

December 12, 2003

CLA-02 RR:CR:SM 562828 EAC

CATEGORY: CLASSIFICATION

Port Director
Port of Washington (Dulles)
Customs and Border Protection
22685 Holiday Park Drive
Suite 15
Sterling, VA 20166

RE: Protest and Application for Further Review 5401-03-100021; liquidation; marking duties; CF-4647 endorsement

Dear Port Director:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided, as well as the points raised by your office and the protestant. We have additionally given consideration to arguments set forth by the protestant in supplemental facsimiles (dated September 11, 2003 and September 22, 2003) and during the course of several telephone conversations with members of my staff. Our decision follows.

FACTS:

The case presently under consideration pertains to safety eyeglass frames imported into the United States at the Port of Washington, D.C. (hereinafter referred to as the “Dulles Port”) on January 7, 2003. The entry was liquidated on May 30, 2003, and this Protest and Application for Further Review was thereafter filed on behalf of Titmus Optical, Inc. (hereinafter referred to as the “protestant”) on July 7, 2003. We note that the protest was, therefore, timely filed.

In order to verify that the imported frames were, in fact, properly marked with their country of origin pursuant to the marking statute, 19 U.S.C. §1304, the Dulles Port requested evidence from the protestant that would serve to identify the ultimate purchaser of the frames within the United States. It is our understanding that such evidence was not provided to the Dulles Port and, in the absence of such evidence, the port determined that the imported frames were not properly marked with their country of origin. Accordingly, a Customs Form (“CF”) 4647, “Notice to Mark”, was issued by the port to the protestant on January 7, 2003, citing a violation of the marking statute.

The protestant thereafter endorsed Section III of the CF-4647 on January 30, 2003, thereby certifying that the frames at issue had been properly marked with their country of origin pursuant to 19 U.S.C. §1304, or otherwise brought into compliance with the cited statute. Though not included with the record presently before us, the protestant states that supplemental information was additionally provided with the CF-4647 to further support the claim that the imported items had been brought within compliance of the marking regulations. The protestant states that the CF-4647, with supplemental information, was filed with the Dulles Port, specifically addressed to the Customs and Border Protection (“CBP”) employee that endorsed the CF-4647 upon issuance. Subsequently, it is not disputed that a CBP employee endorsed Section IV of the CF-4647, checking the block that indicated that the merchandise had been legally marked or otherwise brought into conformity with the marking statute and that the protestant’s certification had been accepted.

We have been advised and note from the CF-4647 in the file that the Section IV endorsement and acceptance of marking certification was obtained from a CBP employee at the Chicago Port. The protestant claims it did not become aware of the apparent transmittal to the Chicago Port until the Dulles Port presented a bill for marking duties upon the liquidation of May 30, 2003. Notwithstanding the uncertainty surrounding the CF-4647 endorsement and acceptance of marking certification by CBP in Chicago, the protestant maintains that the endorsed CF-4647 precluded the subsequent imposition of marking duties by the Dulles Port.

ISSUE:

Whether the CF-4647, Section IV endorsement and acceptance of marking certification obtained at the Chicago Port precluded the imposition of subsequent marking duties by the Dulles Port.

LAW AND ANALYSIS:

As stated above, the protestant argues that marking duties may not be assessed in this case because Section IV of the CF-4647 was validly endorsed by CBP as indicating that the goods at issue were legally marked or had otherwise been brought into conformity with the marking statute. Therefore, the protestant argues, the endorsement obtained in Chicago precluded the imposition of any subsequent marking duties by CBP. We agree and find that, under the specific circumstances of this case, marking duties may not be assessed.

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 a 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. This section further provides that the identity of the imported article shall be established to the satisfaction of the port director.

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. This section further provides that the port director shall notify the importer when the certificate of marking is accepted.

As applied to this case, a CF-4647 was validly issued by CBP to the protestant. Subsequent to receipt of the CF-4647, the protestant certified that the frames at issue had been properly marked with their country of origin or had otherwise been brought into compliance with 19 U.S.C. §1304. The Chicago Port accepted the protestant’s certification and the protestant was thereafter notified that their certification had been accepted as valid. Therefore, the CBP endorsement located in Section IV of the CF-4647 shall be recognized as valid and marking duties may not be assessed.

HOLDING:

Based on the specific facts presented in this case, we find that the protest should be granted in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, this decision and the Customs Form 19 are to be mailed to the protestant no later than sixty days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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