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HQ W562797

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October 30, 2003

MAR-2 RR:CR:SM 562797 KSG

CATEGORY: MARKING

Port Director
Port of JFK, NY
Bureau of Customs & Border Protection
Building 77
Jamaica, NY 11430

RE: Application for Further Review of Protest No. 4701-03-100228; marking duties

Dear Director:

This is in reference to a Protest and Application for Further Review filed by counsel on behalf of Smilen Eye Wear, contesting the assessment of marking duties on an entry of imported spectacle frames.

FACTS:

An entry of spectacle frames was entered by Smilen Eye Wear on May 1, 2002. Customs inspected samples of the shipment of spectacle frames from South Korea on May 1, 2002, and after determining that the articles were not properly marked, issued a Notice for Redelivery (dated May 1, 2002) ("CF4647"). The Notice stated that the marking "Must be marked (etched) on spec frames permanently." The importer certification was signed and dated May 14, 2002, and accompanied by a sample. The certification states the following: "I certify that all merchandise has been marked to indicate the country of origin required by 19 U.S.C. 1304, or otherwise brought into compliance with the cited statute."

The record reflects that on May 16, 2002, Customs officials notified the broker by telephone that the marking of the merchandise was not acceptable. Customs officials gave the broker a copy of the certified CF 4647. Customs officials received a second signed certification on June 6, 2002, accompanied by a second sample, which was properly marked. Customs officials visited the premises of Smilen Eye Wear on June 10, 2002, to examine the goods. The Customs officials were greeted by a company representative who stated that the imported articles were sent to another location so that they could be marked. Your office advises that the Customs official were not admitted to the premises.

This entry was liquidated on November 1, 2002. The protest was filed on February 20, 2003.

ISSUE:

Whether the protest was timely filed.

LAW AND ANALYSIS:

The assessment of marking duties is protestable under the Customs protest statute. See 19 U.S.C. 1514(a)(2).

The filing of a protest must be "within ninety days after but not before—(A) notice of liquidation or reliquidation, or (B) in circumstances where subparagraph (a) is inapplicable, the date of the decision as to which protest is made." 19 U.S.C. 1514(c)(3) and 19 CFR 174.12(e).

Although the Customs Form 19 filed by the protestant asserts that the entries were liquidated on November 30, 2002, Customs records indicate that the entries were liquidated on November 1, 2002. The protest was not filed until February 20, 2003, exceeding the 90-day time period allowed for the filing of protests. We find that the protest, with application for further review, was not timely filed under the statutory and regulatory provisions for protests.

HOLDING:

The protest should be denied in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision should be accomplished prior to mailing of this decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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