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J-List exceptions: what CBP does not make you mark

The J-List is the table at 19 CFR 134.33 naming classes of article excepted from US country-of-origin marking: bolts, nuts and washers, burlap, jute bags, raw hides, livestock and about fifty more. The exception covers the article and not its container. The outermost carton the goods reach the buyer in must still be marked, which is where a J-List shipment comes unstuck.

J-List: The list at 19 CFR 134.33 of classes of article excepted from US country-of-origin marking under section 304(a)(3)(J) of the Tariff Act of 1930. The exception applies to the article; the outermost container it reaches the ultimate purchaser in must still be marked.

What happens when CBP finds a consignment not legally marked Two 30-day clocks run back to back: one on CBP's demand, one on the importer's answer to it. The goods sit, or come back, while they run.

The J-List is the oldest piece of relief in US marking law and the one most often misread. It is a table, published at 19 CFR 134.33, of classes of article that do not have to carry their country of origin. The letter is the statute’s own filing reference, not an acronym. Section 304(a)(3) of the Tariff Act of 1930, now 19 U.S.C. 1304(a)(3), lists its marking exceptions as subparagraphs (A) to (K), and (J) is the historical one:

Such article is of a class or kind with respect to which the Secretary of the Treasury has given notice by publication in the weekly Treasury Decisions within two years after July 1, 1937, that articles of such class or kind were imported in substantial quantities during the five-year period immediately preceding January 1, 1937, and were not required during such period to be marked to indicate their origin.

So the list is a snapshot of what was arriving in American ports before 1937, closed by the statute two years after July 1937, which is why it reads the way it does: bolts, nuts and washers, steel bands, burlap, jute bags, raw hides, livestock, firewood, unstrung beads, harvest hat bodies. The same subparagraph then carries a proviso removing some of them again after 1 September 1938 (sawed lumber and timbers, wooden telephone, trolley, electric-light and telegraph poles, and bundles of shingles), so the table in the regulation is where to start and the statute is worth reading beside it.

Classes of article the J-List excepts, as an import desk meets them A sample of the table in 19 CFR 134.33. The article is excepted; the outermost container is not.

What the J-List does not except

The container. The same regulation that grants the exception takes back half of it in the next sentence:

However, in the case of any article described in this list which is imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents.

That is the sentence that costs money. A desk reads “bolts are J-List”, tells the supplier no marking is needed, and receives a container of unmarked cartons. The articles inside were never the problem.

What it costs when the marking is wrong

Three separate consequences, on three different clocks, and they stack.

The goods do not move. Under 19 CFR 134.3(a), merchandise held in CBP custody “will not be delivered until marked with its country of origin, or until estimated duties payable under 19 U.S.C. 1304(f), or adequate security for those duties … are deposited”. A marking question raised at examination is therefore a storage question within the day, which is why demurrage and detention software that counts the hold days and the marking file end up being the same problem. Examination packages that are not exported, destroyed or properly marked “within a reasonable time (not more than 30 days)” go to general order under part 127.

The bond is called. If the goods were already released, CBP issues Form 4647 and may demand redelivery, no later than 30 days after entry or examination. Fail to mark or redeliver within 30 days of that notice and 19 CFR 134.54(a) has the port director demand liquidated damages “in an amount equal to the entered value of the articles not properly marked or redelivered”. Relief under 134.54(c) is available, and it is conditional on satisfying the Fines, Penalties and Forfeitures Officer that the importer “has been diligent in attempting to secure compliance with the marking requirements”: a sentence about records, not about intentions.

The duty. 19 CFR 134.2 adds 10 percent of the final appraised value, unless the goods are exported or destroyed under CBP supervision before the entry is liquidated. The statute behind it is blunter than the regulation about what that charge is, and is the answer to the first question most importers ask:

there shall be levied, collected, and paid upon such article a duty of 10 per centum ad valorem, which shall be deemed to have accrued at the time of importation, shall not be construed to be penal, and shall not be remitted wholly or in part

Not penal, and not remitted. There is relief from liquidated damages and there is no relief from the marking duty, which is worth knowing before anyone drafts a petition. (19 CFR 134.2 cites the subsection as 19 U.S.C. 1304(f); the current code carries it at 1304(i).)

And one that is not civil at all: 19 CFR 134.4 carries criminal penalties of up to $5,000, imprisonment for a year, or both, for intentionally removing, defacing, destroying or altering a marking to conceal origin.

The desk question, in one line

The J-List answers “must the article be marked?” and nothing else. Before a purchase order goes out on J-List cargo, the question worth asking the supplier is the other one: what will be printed on the outermost carton the buyer opens. That is a document-pack instruction, agreed at contract time, not a customs argument to be had at the terminal with the clock running.

Questions traders ask

What is the J-List?

The table in 19 CFR 134.33 listing classes of article that do not have to be marked with their country of origin. The name comes from the subparagraph that authorises it, section 304(a)(3)(J) of the Tariff Act of 1930, now 19 U.S.C. 1304(a)(3)(J). The articles were set out in Treasury Decisions 49690, 49835 and 49896 and the list has been amended since, most recently by CBP Dec. 21-10 at 86 FR 35582.

What is on the CBP J-List?

About sixty classes of goods, most of them raw or semi-finished: bolts, nuts and washers · steel bands · metal bars, billets, ingots, plates and sheets other than galvanized · nails, spikes and staples · burlap · jute bags · waste bagging · rags including wiping rags · raw hides · leather other than finished · livestock · eggs · cut flowers · feathers · firewood · pulpwood · sawed lumber · laths and wooden pickets · natural products such as vegetables, fruit, nuts, berries and live or dead animals, fish and birds in their natural state · buttons · unstrung beads · playing cards · cigars and cigarettes · works of art. The regulation carries the full table.

Does the J-List mean I do not have to mark anything?

No, and this is the trap. 19 CFR 134.33 says that "in the case of any article described in this list which is imported in a container, the outermost container in which the article ordinarily reaches the ultimate purchaser is required to be marked to indicate the origin of its contents". The exception is for the article. A pallet of J-List bolts in unmarked cartons is still an unmarked importation.

What is the marking duty?

Ten percent of the final appraised value. 19 CFR 134.2 states that articles not marked as required "shall be subject to additional duties of 10 percent of the final appraised value unless exported or destroyed under Customs supervision prior to liquidation of the entry". It is charged for failing to mark the English name of the country of origin on the article or its container, and it stands separately from any liquidated damages on the bond.

How long does CBP have to demand redelivery for a marking problem?

Not later than 30 days after the date of entry where the goods were examined on the dock, or 30 days after the date of examination where they were examined at your own premises, under 19 CFR 134.3(b). The bond condition in 19 CFR 113.62(d) states the same limit from the other side. Once the notice of redelivery is issued, 19 CFR 134.54(a) gives 30 days to mark or redeliver before liquidated damages are demanded.

What is CBP Form 4647?

The Notice to Mark and/or Notice to Redeliver. Under 19 CFR 134.51(a), when articles or containers are found on examination not to be legally marked, CBP notifies the importer on Form 4647 or its electronic equivalent to arrange to mark the goods, or to return all released articles to CBP custody for marking, exportation or destruction. Verification is at the importer's expense and under CBP supervision, unless a certificate of marking under 19 CFR 134.52 is accepted instead.

Related terms

Entry type — The two-digit code on a US customs entry identifying the procedure the shipment went through. Type 01 is the general formal entry; type 11 the general informal entry for merchandise valued at $2,500 or less; type 12 the informal entry for quota or visa goods; type 13 a proposed informal mail entry.
Entry Summary — The documentation or data filed with US Customs and Border Protection that enables it to assess duties, collect statistics on imported merchandise and determine whether other legal requirements are met. Normally CBP Form 7501, submitted through ACE within 10 working days of entry.
Liquidated damages — The amount CBP demands from the principal and surety under a customs bond when a bond condition is breached. The sum is fixed by the bond conditions rather than assessed as a penalty, and the principal may petition for cancellation within 60 days of the notice.
General order — The customs custody status of imported merchandise that has not been entered or released: taken into the port director's custody and deposited in a general order warehouse at the risk and expense of the consignee, where storage runs on top of whatever the terminal has already billed.
Importer of record — The party that makes customs entry for an import and carries the legal liability for the duties, taxes and fees on it. In US trade it must be the owner or purchaser of the merchandise, or a licensed customs broker appropriately designated by them.
Customs value — The value of imported goods on which customs duty is assessed. Under the WTO Valuation Agreement the primary basis is the transaction value — the price actually paid or payable for the goods when sold for export — adjusted by the additions listed in Article 8 and by no others.