ENT 1-03
OT:RR:CTF:ER
H175077 PTM
Port Director
U.S. Customs and Border Protection
Port of Savannah
1 East Bay Street
Savannah, GA 31401
ATTN: Jason Todd, Import Specialist
RE: Further Review of Protest 1703-2011-100202 alleging incorrect importer of record.
Dear Port Director,
We are writing in response to the above-referenced protest and application for further review (“AFR”), dated March 16, 2011. Our response follows.
FACTS:
Starcorp Furniture (Shanghai) Co. Ltd. (“Starcorp”) is an overseas supplier of furniture products. C.H. Robinson, Inc. (“C.H. Robinson”) states that it contracted with Starcorp to provide services in connection with the export of its furniture from China. Starcorp would export the furniture and serve as a foreign importer of record. C.H. Robinson would serve as the domestic agent for Starcorp, which is required for a foreign importer of record. Further, C.H. Robinson agreed to facilitate Starcorp’s entries by paying Starcorp’s duties and arranging for a customs broker, Global Link Brokerage Services. Inc. (“Global Link”) to serve as the broker for Starcorp’s entries. Global Link would prepare and file the entry documents with U.S. Customs and Border Protection (“CBP”). C.H. Robinson provided a copy of a letter dated Nov. 23, 2004, from C.H. Robinson to Global Link setting forth the terms of its arrangement with Global Link. The letter states, in relevant part:
Please note C.H. Robinson is to be shown on the C.F. 7501 as party “accepting service of process” for Starcorp. C.H. Robinson’s IRS # is [41-1645183], which should be shown in Block 22 of C.F. 7501. For these shipments, and future shipments, Starcorp, who is the foreign company in China, will be the “Importer of Record” as shown on the Comm. Inv. And “ultimate consignee” will be the U.S. party also shown on the Comm. Inv…Starcorp has a continuous bond on file and the Customs assigned # is 043501-00038.
C.H. Robinson also provided a copy of the Customs Power of Attorney dated Nov. 23, 2004 between Starcorp and Global Link, authorizing Global Link to conduct customs business on behalf of Starcorp. The Power of Attorney also states “Service of Process Party IRS # (C.H.Robinson).”
On February 28, 2005, Global Link Brokerage Services (“Global Link”) filed entry no. BIY-XXXXX38-3 on CBP Form 3461 with the CBP Port of Savannah on a shipment of wooden bedroom furniture from the People’s Republic of China. The importer of record is listed on the entry as Starcorp, however, the importer number on the entry pertains to C.H. Robinson. There is no bond number listed on the entry. The merchandise was subject to antidumping duty (“ADD”) order A-570-890 at the rate of 15.78%. The consignee is listed as “A-America, Inc” (“A-America”). The accompanying invoice was issued by Starcorp to A-America but lists the importer of record as Starcorp. A bill of lading shows the shipper as Starcorp. The consignee is listed as “to the order of Starcorp Furniture,” the “Notify Party” field lists A-America. The field entitled “Domestic Routing / Export Instructions” lists C.H. Robinson. On March 11, 2005, Global Link filed the CBP Entry Summary Form 7501. It lists Starcorp as the importer of record and A-America as the ultimate consignee. However, the importer number on the Entry Summary belongs to C.H. Robinson, and surety code belongs to Traveler’s Casualty and Surety Co., which is the surety for C.H. Robinson.
On August 10, 2010, CBP sent a Notice of Action to Starcorp stating that CBP had received liquidation instructions from the Department of Commerce for antidumping duty (“AD”) case A-570-890 and would liquidate several entries with a rate advance, including the entry at issue. On November 26, 2010, CBP liquidated the entry and assessed ADD at 216.01% under AD Case No. A-570-890-006. However, CBP billed C.H. Robinson for the additional AD duties because its importer number was listed on the entry documents.
On January 19, 2010, C.H. Robinson sent letters to CBP’s National Finance Center, the CBP Service Port of Savannah, and the CBP area port of Atlanta. The letter stated:
This letter is not intended to be considered a Protest but to notify CBP of recently discovered erroneous and unknown use of our IRS # and surety bond resulting in three bills C.H. Robinson International Inc. received…The correct Importer of Record, as all tendered original entry document records factually reflect for subject entries, is Starcorp Furniture. The Broker that filed and transmitted these entries, Global Link Logistics, declared the correct Name and Address in Box 26 of the C.F. 7501, as Starcorp Furniture Co. Ltd., Shangai, China but declared our IRS #...in box 23 instead of box 24 and Starcorp’s assigned Customs #...in box 23.
On January 27, 2011, Global Link sent a letter to the CBP Port of Savannah stating that “[d]ue to a clerical error, the CH Robinson IRS# as the Service of Process Party was input as the IRS # for the IOR StarCorp…unfortunately, this entry was not discovered until after liquidation.”
C.H. Robinson states that Global Link inadvertently listed C.H. Robinson’s importer identification number on the entry documents, rather than Starcorp’s importer number. Therefore, it states that this alleged clerical error resulted in C.H. Robinson, rather than Starcorp, receiving the bill for the additional antidumping duties assessed upon liquidation. The CBP Port of Savannah states that a prior CBP Headquarters’ Ruling, HQ 230208 (July 15, 2005), in which CBP denied a protest because the protestant had failed to demonstrate with the documentary record that a clerical mistake was responsible for the purported misidentification of the importer of record on the entry documents, stands for the proposition that this protest should be denied.
ISSUE:
Whether the incorrect importer of record was listed due a clerical error, mistake of fact or other inadvertence:
LAW AND ANALYSIS:
As an initial matter, we note that the protest was timely filed on March 16, 2011, within 180 days of liquidation of the entry on November 26, 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(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 whose IRS number was listed on the entry documents as liable for the entry.
Pursuant to 19 U.S.C. §1514, it is permissible to protest “any clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in an electronic transmission, adverse to the importer, in any entry, liquidation, or reliquidation, and, decisions of the [legacy] Customs Service.” The regulation promulgated thereunder, 19 C.F.R. §174.11 provides, in relevant part:
(a) Clerical errors, mistakes of fact, and other inadvertences. Except as provided for in sections 501 (relating to voluntary reliquidations), 516 (relating to petitions by domestic interested parties), and 520 (related to refunds) of the Tariff Act of 1930, as amended), any clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in an electronic submission, that is adverse to the importer in any entry, liquidation or reliquidation is subject to protest…
Furthermore, pursuant to 19 C.F.R. § 173.4(b), “a CBP decision involving any clerical error, mistake of fact, or other inadvertence…that is adverse to the importer in any entry, liquidation or reliquidation, may be corrected by protest only.” Thus, it is permissible for importers to protest to correct clerical errors, mistakes of fact, and other inadvertences adverse to the importer. Furthermore, pursuant to 19 C.F.R. §173.4(b), a protest is the sole recourse to correct an entry filed incorrectly as the result of a clerical error, mistake of fact, or other inadvertence for entries filed after December 18, 2004. Because the protestant here alleges that it was incorrectly held liable as the importer of record due to a clerical error or inadvertence, the protest is permissible.
A clerical error is "mistake by a subordinate, who does not have any duty to exercise judgment with regard to classification." Xerox Corp. v. United States, 219 F. Supp. 2d 1345, 1348 (Ct. Int'l Trade 2002) (citations omitted). See also, PPG Industries, Inc. v. United States, 7 CIT 118, 124 (1984), defining a clerical error as "a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgment, in writing or copying the figures or in exercising his intention." A mistake of fact is "a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist." C.J. Tower & Sons of Buffalo, Inc. v United States, 68 Cust. Ct. 17, 22 (1972) (citations omitted), aff'd by 499 F.2d 1277 (C.C.P.A. 1974) (citations omitted). An "inadvertence" is even broader in scope, encompassing oversights or involuntary accidents, even mistakes resulting from inattention and carelessness. Hambro Automotive Corp. v. United States, 603 F.2d 850, 854 (C.C.P.A. 1979).
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. In HQ 225317, there were two parties entitled to be importer of record, and only one of the parties was listed as the importer of record on all of the entry documents. The parties later requested CBP to reliquidate the entry to correct the “clerical error” and substitute the other party as importer of record for the entry. In that case, CBP found that there was no clerical error, mistake of fact or other inadvertence as a party entitled to be importer of record was listed on the entry and liquidated accordingly. By contrast, here there are two parties shown on the entry documents: one party is listed as the importer of record while the other party’s importer number is listed. Consequently, there is an error on the face of the entry documents inasmuch as the importer number does not correspond to the importer of record listed for the entry.
On the entry documents, Starcorp is listed as the importer of record, but C.H. Robinson’s importer number is listed. Starcorp is also listed as the importer of record on the invoice associated with the entry. Furthermore, the customs broker, Global Link, has a customs power of attorney from Starcorp. However, it had no power of attorney from C.H. Robinson. Therefore, it had no authority to list C.H. Robinson as the importer of record for the subject entry. Global Link, in its letter dated January 27, 2011, acknowledged that it had committed a clerical error in listing C.H. Robinson’s importer of record number on the entry documents. Consequently, listing C.H. Robinson’s importer number is a “mistake by a subordinate” or a “mistake resulting from inattention or carelessness” that would qualify as a clerical error or inadvertence.
The port asserts that HQ 230208, dated July 15, 2005, applies. In that case, CBP denied a protest alleging that CBP erroneously denied a petition under 19 U.S.C. §1520(c)(1) to correct an alleged clerical error misidentifying the importer of record. That ruling is distinguishable because in HQ 230208, the protestant was unable to document that the alleged mistake occurred as a result of an inadvertent clerical error, because it failed to identify or describe the circumstances under which the incorrect importer of record was identified on the entry summary. The protestant in HQ 230208 did not demonstrate that the broker committed a clerical error, instead stating that it made the error. By contrast, in this case the entry documents all list Starcorp’s name as the importer of record, but the entry documents list C.H. Robinson’s importer number in lieu of Starcorp’s. Therefore, the commercial documents and entry documents in this case establish that the broker committed a clerical error or inadvertence.
HOLDING:
C.H. Robinson’s importer number was incorrectly listed on the entry documents due to a clerical error or inadvertence. Therefore, you are instructed to GRANT the protest.
Sixty days from the date of the decision 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