- Type : • HTSUS :
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Related:
225317
PRO 2-05
OT:RR:CTF:ER
H157616 PTM
Port Director
U.S. Customs and Border Protection
#1 La Puntilla Street Room 214 San Juan, PR 00901
ATTN: Laramie Calero, Import Specialist
RE: Further Review of Protest 4909-11-100008 alleging incorrect importer of record
Dear Port Director,
We are writing in response to the above referenced protest and application for further review (“AFR”) forwarded to us by your office. Our response follows.
FACTS:
On July 28, 2005, customs broker Nestor Reyes, Inc. filed a U.S. Customs and Border Protection (“CBP”) entry form 3461 for entry number 508-XXXXXXX180 with the CBP Port of San Juan, Puerto Rico. The merchandise listed was wooden bedroom furniture from the People’s Republic of China (“PRC”). The ultimate consignee listed on CBP form 3461 is “Lifestyle Enterprise Inc.” (“Lifestyle”). The importer of record is listed as “same.” CBP’s Automated Commercial Service (“ACS”) shows that the importer number shown on the CBP Form 3461 is Lifestyle’s. The accompanying invoice dated May 21, 2005, was issued by Starcorp Furniture Inc. (“Starcorp”) to Lifestyle, showing the purchase of wooden bedroom furniture from the PRC. The invoice lists Starcorp as the importer of record, and Lifestyle as the purchaser of the subject merchandise.
On August 10, 2005, the CBP Entry Summary form 7501 was filed on the subject entry by “Nestor Reyes, Inc., ATTY-IN-FACT.” The entry summary lists Lifestyle as the importer of record, and lists Lifestyle’s importer number. The merchandise is listed as wooden bedroom furniture from China, subject to antidumping case number A570-890.
On October 15, 2010, CBP issued a Notice of Action to Lifestyle for the subject entry. The Notice of Action stated that antidumping duties (“ADD”) of 216.01% would be assessed on the merchandise pursuant to AD Case number A-570-890-006. On November 5, 2010, the subject entry was liquidated.
Lifestyle asserts that it was incorrectly listed as the importer of record for the subject entry. In support of its position, Lifestyle submitted correspondence purported to show that the broker incorrectly listed Lifestyle as the importer of record instead of Starcorp. It submitted an email dated November 23, 2010, from Starcorp’s national customs broker, CH Robinson Worldwide, Inc. to Lifestyle that states:
On these Starcorp shipments, correct they were the [importer of record] and we did not have [power of attorney] for Lifestyle. We only were clearing shipments for Starcorp and shipments were being delivered to there [sic] various customers. We issued sub-POA’s to other Brokers but of course only on behalf of Starcorp, our customer and only party we had a POA for. It sounds like a Broker in error, and not authorized and without a POA used your IOR to clear shipment.
The protestant also notes that the customs broker that filed the entry, Nestor Reyes, Inc., had no power of attorney to conduct customs business on behalf of Lifestyle. Lifestyle asserts that it was erroneously listed as the IOR for the subject entry in lieu of Starcorp and should not be liable for the duties assessed. The port states that the subject entry remained in suspense for five years, which was sufficient time to correct any alleged error. Further, the commercial invoice listed Lifestyle as purchaser of the merchandise. The port states that Lifestyle should have detected the error at the latest, when it issued the Notice of Action form dated October 15, 2010. Because Lifestyle took no corrective action, the port states that it properly liquidated the entry and billed Lifestyle as the importer of record for that entry.
ISSUE:
Whether Lifestyle was incorrectly held liable as the importer of record for the subject entry.
LAW AND ANALYSIS:
As an initial matter, we note that the protest was timely filed on February 2, 2011, within 180 days of liquidation of the entry on November 5, 2010, under the statutory provisions for protests. See 19 U.S.C. §1514(c)(3). Further, since the protest involves questions of law or fact that have not previously been ruled upon, the criteria for further review by this office have been met per 19 C.F.R. §§174.24(a) and 174.24(b). Consequently, review of the protest is appropriate pursuant to 19 C.F.R. § 174.26(a). Specifically, CBP has not ruled on the issue of whether CBP improperly held the party shown as the importer of record on the entry documents liable for the entry.
Section 484(a)(1) of the Tariff Act of 1930, as amended, specifies that only parties qualified as the “importer of record” may make entry. See 19 U.S.C. §1484(a)(1). Those qualified parties are identified as the owner or purchaser of the goods, or a broker appointed on behalf of an owner, purchaser or consignee under 19 U.S.C. §1484(a)(2)(B). There is no hierarchy of priority among those permitted to enter merchandise. The statutory language governing entry of imported merchandise indicates an absence of congressional desire to create a statutory hierarchy or priority list among those persons qualified to make entry. See National Customs Brokers and Forwarders Assn. v. United States, 731 F. Supp. 1076, 1080 (CIT 1990). See, also, JFK Customs Brokers Association v. United States, 745 F. Supp. 113, 116 (EDNY 1990) (indicating that the statute creates no hierarchy as to who may properly designate a broker). The entry and entry summary documents (CBP forms 3461 and 7501, respectively), both show Lifestyle as the importer of record. Lifestyle’s importer number is also listed on both CBP forms. The accompanying invoice shows Lifestyle as the purchaser of the merchandise. Because Lifestyle was the purchaser of the merchandise, it is a party qualified to be the importer of record pursuant to 19 U.S.C. §1484(a)(2)(B).
The entry was filed on May 21, 2005, and the entry summary was filed on August 10, 2005. The entry was not liquidated until November 5, 2010. Consequently, there was a five year period during which Lifestyle could have remedied this by having Starcorp come forward as the new importer of record. Furthermore, even after CBP issued a Notice of Action on October 15, 2010, Lifestyle took no action prior to the entry’s liquidation on November 5, 2010. Lifestyle provided email correspondence with this protest that purported to show that the entry was made in error. However, no corrected entry, entry summary or bond was filed by Starcorp or its broker, C.H. Robinson. This is not a simple error that can be corrected by a protest because although Lifestyle is listed as the importer of record, and has a right to make entry, it alleges that another party agreed to be the importer of record for this entry. CBP cannot decide such disputes between parties in a protest. Furthermore, CBP has previously held that where two parties are entitled to be importer of record, it is more appropriate to leave it to the parties to determine by contract who must make entry, rather than “compelling [legacy] Customs to determine from which eligible person to accept an entry.” See HQ 225317 (Oct. 25, 1994) (declining to find that substitution of importer of record is a clerical error). Thus, CBP is not obligated to determine which party that is qualified to be importer of record must file entry. Accordingly, since CBP properly liquidated the entry and billed the importer of record listed for that entry, there is no error in the liquidation of the entry.
HOLDING:
CBP properly did not err in holding the importer of record shown on the entry documents liable for the entry. You are instructed to DENY the protest.
No later than 60 days from the date of this letter, 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
Commercial and Trade Facilitation Division