• Type : Entry • HTSUS :

BRO-1-RR:IT:EC 113715 GEV

Michael Hahn
President
Export Links Inc.
87 Dorchester Drive
Grimsby, Ontario, Canada L3M 1B1

RE: Broker; Consultant; 19 CFR  111.36(a)

Dear Mr. Hahn:

This is in response to your letter dated September 25, 1996, requesting a ruling to assist you in understanding and complying with the above-referenced regulation of the U.S. Customs Service. Our ruling on this matter is set forth below.

FACTS:

Your company, Export Links Inc., is a Canadian company which provides various financial, consulting and management services to its clients. Your clients are primarily Canadian but some are subsidiaries of U.S. companies. Due in part to this type of U.S. exposure, you have recently been contacted to provide certain management services to U.S. importers. These management services include the provision of a review of financial and customs records. To facilitate this process, your U.S. clients have appointed you as "agents in trust" and have contractually empowered you to represent their interests in dealing with federal authorities.

Further in regard to the services your company provides, you state that you are not a U.S.- licensed customs broker or law firm. You therefore do not dispense U.S. customs legal advice, nor do you engage in any services which require a U.S. broker's license. You simply manage the process of conducting a review of the aforementioned records of your clients. If a specific area requires the services of a customs attorney or licensed customs broker, you have the contractual authority and obligation to appoint and hire the appropriate parties to provide the required services.

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With respect to your company's services, you request our opinion as to the applicability of  111.36(a), Customs Regulations (19 CFR  111.36(a)) or any other applicable regulations in the following scenarios:

Scenario 1

Your service results in the discovery of a drawback opportunity. You engage a licensed customs broker to prepare and present the drawback claims. You negotiate the terms of engagement and contract to pay the licensed broker for the services provided. Additionally, your client, the U.S. importer, signs the required "Power of Attorney" authorizing the licensed broker to provide the service. The licensed broker then works directly with the importer to provide drawback services. Payment for the broker's service comes from you and is a cost to you.

Scenario 2

You purchase shares in a licensed U.S. brokerage firm. Shares are either privately held or publicly traded. From time to time you refer business to this licensed brokerage firm. No "agreement to perform Customs business for a third party" exists. No fees or commissions are paid to you on the referred business. However, dividends are paid as earned according to the shareholders' agreement.

ISSUE:

Whether the procedures described in the above two scenarios are permissible under the Customs Regulations.

LAW AND ANALYSIS:

At the outset we note that the U.S. Customs Service regulation applicable to both scenarios is found at title 19, Code of Federal Regulations,  111.36(a) (19 CFR  111.36(a)) which provides, in pertinent part, that "[a] broker shall not enter into any agreement with an unlicensed person to transact Customs business for others in such manner that the fees or other benefits resulting from the services rendered for others inure to the benefit of the unlicensed person except as provided in paragraph (b) of this section." The aforementioned exception regarding a freight forwarder is inapplicable with respect to the two scenarios in question.

In regard to Scenario 1, we note that Customs has had previous occasion to consider similar facts in light of  111.36(a). (See Headquarters information letter 221330, dated May 20, 1991) In that case, a customs consultant without a broker's license contracted to review various customs matters of its client, including drawback. The consultant determined that his client, an importer, qualified for drawback and subsequently forwarded the necessary documentation and information to a licensed broker with whom he had a working relationship. The broker in turn prepared the drawback proposal and claims and filed them with Customs. The consultant billed

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the importer/drawback claimant, and the broker billed the consultant for brokerage services rendered for the importer/drawback claimant. Our position, as stated in the aforementioned letter, was that in view of the fact that the consultant, an unlicensed party, would receive a monetary benefit from the performance of Customs business by the broker for a third party, this arrangement would be a violation of  111.36(a). We find this rationale applicable with respect to the first scenario proposed in your letter. Your company, an unlicensed customs consultant, would be receiving a monetary benefit (i.e., fees paid to you from your client) stemming from a contractual agreement between your company and the broker for the transaction of Customs business by the broker for your client. Accordingly, such a scenario results in a violation of  111.36(a).

We do not reach the same conclusion with respect to Scenario 2. In that situation the financial benefits (i.e., dividends) paid to your company are pursuant to a shareholder's agreement entered into upon its purchase of shares in a licensed U.S. brokerage firm, not from an agreement between your company and the brokerage firm to transact Customs business for the benefit of a third party. Your company's gratuitous, informal business referrals to the brokerage firm do not constitute the "agreement" contemplated by  111.36(a). Consequently, Scenario 2 does not constitute a violation of that regulation.

HOLDING:

The procedures described in Scenario 1 are violative of  111.36(a) whereas those described in Scenario 2 are not.

Sincerely,

Jerry Laderberg
Chief
Entry and Carrier Rulings Branch