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HQ 230208

July 15, 2005

RR:CR:DR 230208 EMS

U.S. Customs and Border Protection
Port Director, Miami Service Port
P.O. Box 52-3215
Miami, FL 33152
ATTN: Jeffrey O. Baldwin, Sr.

RE: Protest/application for further review No. 5201-03-100295; 19 U.S.C. § 1520(c)(1); section 520(c)(1) petition; misidentification of importer of record; 19 U.S.C. § 1485(d); 19 C.F.R. § 141.20; liability of importer for duties; 19 U.S.C. § 1641(b)(6); freight forwarder; customs broker

Dear Mr. Baldwin:

This is in response to your correspondence dated November 26, 2003, requesting a further review of Protest No. 5201-03-100295. Becker & Poliakoff, P.A. (Counsel) filed this protest on behalf the freight forwarder, G&G International, Inc. (G&G Int’l).

U.S. Customs and Border Protection (CBP) liquidated an entry of men’s knitted soccer shirts, assessing increased duties against G&G Int’l. G&G Int’l protests the denial of its § 520(c)(1) petition, which alleged that an error occurred when the subject entry was made, causing G&G Int’l to be identified as the importer of record (IOR). G&G Int’l seeks reliquidation of the subject entry, with CBP reassessing the monies owed against the purchaser of the subject merchandise. Our decision follows.


Mutualista Pichincha Corp. (Mutualista) imported a single entry of 417 dozen men’s knitted soccer shirts from Ecuador into the United States. The air waybill identifies Mutualista as the consignee and G&G Int’l as the freight forwarder for the subject merchandise, which arrived at the Miami Service Port (the Port) on March 16, 2002. Prior to the importation of the subject entry, Mutualista signed over power of attorney to the customhouse broker (the CHB). See CF 5291 (Power of Attorney) dated March 12, 2002. We note the CHB was issued an individual customhouse broker permit on August 26, 1999.

The Automated Commercial System (ACS) presently indicates that the CHB is doing business as (DBA) G&G Int’l, per a corporate broker’s license. However, the CHB did not obtain CBP authorization of its corporate capacity (DBA G&G Int’l) until 2004, meaning that the CHB was acting as an individual broker at the time that the CHB filed entry for the subject merchandise. In its capacity as a broker, the CHB conducts customs business under the number 65-xxxxxxxxx. On March 19, 2002, CBP released the subject merchandise, according to the Automated Commercial System (ACS). The CF 3461 (Entry/Immediate Delivery) filed at the Port is dated March 19, 2002, and identifies the IOR and ultimate consignee (UC) as “G/G International Inc,” showing 65-xxxxxxx for the consignee and importer numbers. The CHB is listed as the filer on the CF 3461, and its mailing address is also identical to the one provided for G&G Int’l on this form. The CHB signed the certification statement on this form, identifying itself as “Attorney-in-Fact.”

The entry summary package was later presented, although the date of presentation is unclear. A cover letter attached to the package, dated April 2, 2002, is signed by the CHB; however, that cover letter has been stamped, presumably by CBP, with two dates, April 2, 2002 and April 23, 2002. These dates correspond to the dates shown on the two separate CF 7501 (Entry Summary) forms submitted for our review.

The record copy of the earlier CF 7501 is signed and dated April 3, 2002 by the CHB, and the entry summary information was entered into ACS on April 2, 2002, although the Port rejected this CF 7501. The record copy of another CF 7501, dated April 23, 2002, is signed by the CHB, and appears to have been date-stamped and processed by CBP. Both record copies of the CF 7501 identify the IOR and UC as “G/G International Inc,” showing 65-xxxxxxx for the consignee and importer numbers. These record copies also reflect that the CHB is the filer, and its mailing address is also identical to the one provided for G&G Int’l, on both forms.

The CF 3461 included with the entry documents package was a copy of the original submitted on March 19, 2002, but it contained a number of pen and ink changes. Handwritten next to the blocks for the IOR and UC, which previously showed “G/G International Inc.,” was Mutualista’s name and address. The consignee and importer numbers, previously showing 65-xxxxxxx, were changed to 11-xxxxxxx. In addition, the original classification was black-lined and below it, in pen and ink, was written “6110.20.2040.” In the upper left-hand corner of the form, there is a notation: “Pen & ink change” and appears to have been initialed by the CHB. These changes are not reflected on the face of either CF 7501.

On April 29, 2002, the Port sent a courtesy notice entitled “2 Week Late Extract Late Report” to the CHB, requesting proof of filing for the subject entry and identifying the importer number as 65-xxxxxxxxx. According to this notice, the entry summary documentation was not filed within ten working days after the date of entry, as required by CBP regulations. The date of entry was March 16, 2002, ten business days from which would have been April 1, 2002. At the bottom of the page, there is a handwritten notation stating “Presented at 4/3 and then at 4/19.” This notation, of unknown origin, approximately corresponds to the two separate dates on the copies of the CF 7501 forms submitted for our review.

On May 7, 2002, the Port issued a CF 29 (Notice of Action) to “G/G International Inc./ATTN: [CHB]” for a proposed rate advance for the subject entry based on classification. On May 23, 2002, the CHB responded in a letter stating that due to a clerical error, the entry had been mislabeled, and concluded that the proper classification for the subject merchandise was indeed under subheading 6110.20.2040, HTSUS. In support of its claim, the CHB also submitted a sample and corrected commercial invoice, single country textile declaration, a single entry bond (SEB) for the subject merchandise, and a CF 7501. The corrected commercial invoice was issued to Mutualista. The SEB was filed on a CF 301 (Customs Bond) and it identifies the principals as Mutualista and the CHB. While the CF 301 identifies the subject entry as the transaction secured by the bond, CBP did not date-stamp, assign a bond number, or otherwise process the SEB.

The CF 7501 that was attached to the SEB is not mentioned in the text of the letter, even though it varies significantly from the CF 7501 originally presented to CBP. The record copy of this “corrected” CF 7501 was date-stamped, presumably by CBP, with the date May 23, 2002. At the top of the form, “corrected copy” is handwritten. There are no other marks that would indicate processing by CBP, and indeed the Port did not process this form. The corrected CF 7501 differs from the original presented to CBP when the CHB made entry in April 2002. While the prior CF 7501 indicated that G&G Int’l was the IOR and UC, the corrected CF 7501 identified Mutualista as the IOR and UC, showing 11-xxxxxxx for the consignee and importer numbers. The CHB is listed as the filer and its signature appears on the corrected CF 7501.

After receiving the CHB’s submission, CBP reclassified the subject merchandise and liquidated the subject entry on July 19, 2002, with a rate advance to IOR number 65-xxxxxxxxx, which is assigned to the CHB. We note that G&G Int’l provided a copy of an invoice dated September 20, 2002. This invoice was issued from G&G Int’l to Mutualista, and seeks payment from Mutualista to U.S. Customs, for duties owed. The invoice does not identify any specific entry number. The request contained therein closes with the typewritten name “[CHB]. /line/ G&G International, Inc.” With respect to the bond, ACS shows the bond number on file for this subject entry as 5xxxxxxx2, and the principal is the CHB doing business as (DBA) G&G Int’l. This $50,000 bond corresponds to IOR number 65-xxxxxxxxx, effective September 26, 1999.

On November 18, 2002, CBP issued to G&G Int’l a formal demand for immediate payment of a delinquent bill for the subject entry. Less than a month later, on December 11, 2002, G&G Int’l’s then counsel submitted a § 520(c)(1) petition seeking reliquidation of the subject entry, with all fines and duties assessed against Mutualista rather than G&G Int’l. The Port denied the petition on May 5, 2003, on the grounds that G&G failed to demonstrate that a clerical error was responsible for the CHB’s identification of G&G Int’l as the IOR in the entry documents submitted to CBP.

Through Counsel, G&G Int’l filed a CF 19 (Protest) with an attachment on June 13, 2003, objecting to the denial of the § 520(c)(1) petition. G&G Int’l acknowledged that, as a freight forwarder, it lacked the legal capacity to file the subject entry. Nonetheless, on the CF 29, G&G Int’l claimed that: ”Numerous errors were committed by the filer, G&G International, the most significant being the correct name of the importer of record, Mutualista Pichincha Corp.” In addition, G&G Int’l claimed that “[b]ecause G&G International incorrectly entered the merchandise in the wrong classification, it was rate-advanced, but G&G was not paid the customs duties by its customer Mutualista, it has no funds to pay the customs duties plus accrued interest.” G&G does not address the apparent fact that the CHB, and not G&G Int’l, entered the subject merchandise and conducted the related CBP transactions.

G&G Int’l’s only reference to the CHB in the CF 19 and its attachments is with regard to Counsel’s statement that a “stern warning letter dated February 27, 2003 from the Service Port Director in Miami ordering [the CHB], who has an individual customs license to take corrective action.” Counsel states that, in response to the warning letter, “action has been taken, G&G no longer files entries for its customers, but such entries are filed under the name of [the CHB] only.” There is no explanation as to how any subsequent corrective actions for other importations would militate in favor of or against the denial of the § 520(c)(1) petition. And, despite the apparent fact that both share a business address, G&G Int’l did not explain its relationship, if any, to the CHB.

This relationship is illuminated, however, by the events leading up to the Port’s issuance of pre-penalty notices against both G&G Int’l, on August 26, 2003, and the CHB, on August 28, 2003. The facts alleged in support of the pre-penalty notices state that the Articles of Incorporation, filed with the Florida Department of State on December 12, 2001, show that the CHB is the President of G&G Int’l. In addition, while the CHB had informed the Port that its office is located in the G&G Int’l facility, the CHB did not furnish proof that it was a separate business entity from G&G Int’l. On February 15, 2002, the Port met with and counseled the CHB because, inter alia, its entry documentation reflected the CHB’s name as “[] CHB (G/G Int’l).” Numerous other informed compliance meetings took place between this meeting and February 13, 2003, and during that period, G&G Int’l and the CHB continued to jointly and deliberately misuse the CHB’s broker’s license to permit G&G Int’l, an unlicensed corporation (i.e., not having a corporate broker’s license), to conduct customs business.

The Port has assessed penalties against G&G Int’l for the violation of 19 U.S.C. § 1641(b)(6), for the conducting and transacting customs business without a license, and the CHB, for violating numerous CBP regulations per 19 U.S.C. § 1641(d)(1)(D). Based on the facts set forth in the Port’s allegations of these violations, it appears that the CHB contracted with G&G Int’l to form what amounted to an unapproved brokerage corporation. It further appears that the CHB consistently failed to adhere to CBP regulations when making entry. At present, we are advised that no action is being taken on the pre-penalty notices issued to G&G Int’l and the CHB pending a separate review of those cases by CBP.

Approximately three months after the issuance of the pre-penalty notices, the Port submitted an application for further review of the protest, on November 26, 2003. According to the accompanying CF 6445 (Customs Protest and Summons Information Report), it is the Port’s position that G&G Int’l failed to substantiate the alleged clerical error responsible for the misidentification of G&G as the IOR and UC for the subject merchandise. Consistent with the aforementioned pre-penalty notices, the Port also reported that the CHB is an officer of G&G Int’l and that, while the freight forwarder does not possess the right to make entry, the CHB made numerous other entries in 2002, also identifying G&G Int’l as the IOR.

In a letter dated June 2, 2004, Counsel provided a supplement to the June 13, 2003 protest, including a letter from the CHB to Counsel. Despite the fact that the CHB filed the entry documents in its capacity as an individual broker, the CHB alleges that “G/G [I]nternational [being] the agent for the exporter in Ecuador [,] they made the mistake when ordering the entry to put themselves as importer of records.” The CHB also states that G&G Int’l has a continuous bond, so there was no need to submit or present a bond upon entry given that G&G Int’l was listed as the IOR. Furthermore, it appears to be the CHB’s position that it presumed CBP had “accepted” the corrected CF 3461, corrected CF 7501, and SEB for Mutualista because CBP did not respond to or return the documents that it had submitted. There is not any additional elaboration as to why the CHB originally identified G&G Int’l as the IOR, nor is there a description of any other attempts to remedy the incorrect filing, save for those previously set forth in the FACTS section.


Whether the misidentification of the importer of record and the subsequent failure to comply with 19 C.F.R. § 141.20 are correctable under 19 U.S.C. § 1520(c)(1)?


Initially, we note that the subject protest against the denial of the § 520(c)(1) petition was timely filed pursuant to 19 U.S.C. § 1514(c)(3)(B). G&G Int’l filed the petition on December 11, 2002, under 19 U.S.C. § 1520(c)(1), to request the reliquidation of the subject entry. The Port denied the petition on May 5, 2003, and G&G Int’l protested the denial on June 13, 2003, within 90 days from the Port’s denial, as prescribed under 19 U.S.C. § 1514(c)(3)(B).

The protestant seeks reliquidation of the subject entry in its § 520(c)(1) petition. Section 520(c) of the Tariff Act of 1930, as codified at 19 U.S.C. § 1520(c), is an exception to the finality of the liquidation of an entry under 19 U.S.C. § 1514. The Miscellaneous Trade and Technical Corrections Act of 2004 repealed 19 U.S.C. § 1520(c), and amended 19 U.S.C. § 1514(a) to include clerical errors, mistakes of fact, and other inadvertence as bases of protest. See H.R. 1047 108th Cong. § 2105 (2004) (enacted). In the instant case, 19 U.S.C. § 1520(c) is controlling because the provision was in force when CBP liquidated the subject merchandise. Per 19 U.S.C. § 1520(c):
the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry or reconciliation to correct-- (1) a clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in electronic transmission, not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the Customs Service within one year after the date of liquidation or exaction . . . .

Therefore, CBP may reliquidate the protested entries to correct a clerical error, mistake of fact, or other inadvertence if three requirements are satisfied: (1) the error is adverse to the importer's interest; (2) the error is manifest from the record or established by documentary evidence; and (3) the error is brought to CBP’s attention within one year of the date of liquidation.

The protestant timely filed the § 520(c)(1) petition on December 11, 2002, which was within one year of July 19, 2002, the date of liquidation for the subject entry. G&G Int’l does not challenge the classification of the subject merchandise, but instead alleges that G&G Int’l should not have been billed for the duties and accrued interest owed for the subject merchandise because G&G Int’l is not the IOR. While adverse to the importer, CBP’s decision to liquidate the entries under subheading 6109.10.0012, HTSUS, dutiable at 14.7% ad valorem, is not at issue in this case. The subject merchandise was entered under subheading 6109.90.4010, HTSUS, which is dutiable at a rate of 5.5% ad valorem. CBP’s decision to reclassify the subject merchandise resulted in the assessment of a higher rate of duty. Therefore, the identification of G&G Int’l as the IOR when making entry for the subject merchandise would be adverse to G&G Int’l’s interests because the IOR is liable for the duties owed and accrued interest. See 19 C.F.R. § 141.1 (establishing the liability of the importer for duties).

Misidentification of the IOR on the CF 7501

We note that the identification of G&G Int’l as the IOR is incorrect, given that G&G Int’l was legally ineligible to file the entry documentation. Per 19 U.S.C. § 1484(a)(2)(B), the IOR must be one of the parties who is eligible to file the entry documentation, meaning either “the owner or purchaser of the merchandise or, when appropriately designated by the owner, purchaser, or consignee of the merchandise, a person holding a valid license under section 641.” G&G Int’l was neither a corporate broker, nor did it appear to have been the purchaser or owner of the subject merchandise given that the air waybill and other commercial documents show that Mutualista purchased and intended to import the subject merchandise. Even though the identification of G&G Int’l as the IOR may have been incorrect, the fact that G&G Int’l lacked legal capacity to be an IOR for the subject merchandise, under 19 U.S.C. § 1484(a)(2)(B), is not dispositive in our decision on the instant § 520(c)(1) petition.

At issue is whether G&G Int’l has demonstrated that the entry of the subject merchandise with G&G Int’l identified as the IOR is a mistake of fact, clerical error, or other inadvertence that does not amount to an error in the construction of law. 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). Additionally, a clerical error is “mistake by a subordinate, who does not have any duty to exercise judgment.” Xerox Corp. v. United States, 219 F. Supp. 2d 1345, 1348 (Ct. Int’l Trade 2002) (citations omitted), enforced by No. 99-02-00086, slip op. 2004-113 (Ct. Int’l Trade Dec. 8, 2004).

We begin by observing that G&G Int’l fundamentally mischaracterizes its § 520(c)(1) claim as an error that G&G Int’l committed rather than a broker’s misdoing, even when it appears evident that the CHB filed the entry documents. According to the § 520(c)(1) petition, G&G Int’l alleges that it was the filer, and in that capacity, it made an “internal error” identifying itself as the IOR, rather than Mutualista. In the protest, G&G Int’l claims that it “mistakenly believed at the time [of entry of the subject merchandise] that it was a licensed customs broker, and even obtained a power of attorney.” In a letter dated May 6, 2004, the CHB also alleges that G&G Int’l erroneously identified itself as the IOR when making entry of the subject merchandise.

Contrary to these claims, the evidence shows that the CHB is the filer for the subject merchandise. The CHB is identified as the filer on the CF 3461, in its original and corrected forms submitted to CBP. The CHB is also identified as the filer on the CF 7501 forms, dated April 3, 2002 and April 23, 2002, and the corrected form submitted on May 23, 2002. The CHB also submitted a reply to the CF 29, in its capacity as an individual broker. The only proof of power of attorney provided is a CF 5291, wherein Mutualista grants the power of attorney to the CHB. There is no mention of G&G Int’l on any of these CBP forms, and thus we find no proof that G&G Int’l made entry.

We emphasize that the CHB was not authorized to conduct customs business on behalf of G&G Int’l for the subject entry. The CHB was only authorized as the broker for Mutualista and could not have acted as a broker on behalf of G&G Int’l in its capacity as freight forwarder. The CHB was licensed as an individual broker unauthorized to conduct customs business on behalf of G&G Int’l, although the CHB is identified as the filer on all of the CBP forms submitted for our review. If G&G Int’l were to have conducted customs business, through the CHB, in this case, these actions may be subject to penalty because intentionally transacting customs business without a license is prohibited, per 19 U.S.C. § 1641(b)(6):

Any person who intentionally transacts customs business, other than solely on the behalf of that person, without holding a valid customs broker's license granted to that person under this subsection shall be liable to the United States for a monetary penalty not to exceed $ 10,000 for each such transaction as well as for each violation of any other provision of this section.

While the Port and G&G Int’l both acknowledge that the CHB has repeatedly and improperly filed entries DBA G&G Int’l in past CBP transactions (other than the instant case), G&G Int’l’s petition filed under §1520(c)(1) does not allege that the CHB was acting on behalf of G&G Int’l, nor would any of the entry forms submitted to the Port suggest this scenario in the instant case.

Regardless of whether the CHB was acting on behalf of Mutualista or intending to illegally conduct customs business for G&G Int’l, it is not "manifest from the record" in this case that the incorrect identification of G&G Int’l as the IOR was a mistake of fact, clerical error, or other inadvertence, per 19 U.S.C. § 1520(c)(1). The § 520(c)(1) petition fails to identify or describe the circumstances under which G&G Int’l was originally identified as the IOR on the CF 7501. G&G Int’l has not provided affidavits or documentary evidence explaining the nature of the error in this case, and in the absence thereof, reliquidation will not be granted per 19 U.S.C. § 1520(c)(1). See Bar Bea Truck Leasing Co. Inc. v. United States, 5 Ct. Int’l Trade 124, 126 (1983).

G&G Int’l does not acknowledge the role of the CHB in filing the CF 7501, and never subsequently alleges that any mistake of fact, clerical error, or other inadvertence by the CHB was responsible for the identification of Mutualista as the IOR. In HQ 227912 dated January 19, 1999, CBP found that that the Port properly denied a § 520(c)(1) petition when the importer failed to allege or establish the liability of the broker. In that case, the issue concerned the misclassification of imported goods, and CBP concluded that “even if [the importer] was mistaken as to the nature of the merchandise[,] [the importer’s] mistake did not cause the error in liquidation, because it was the broker that filed the entries.” Likewise, in the instant case, even if G&G Int’l had been mistaken as to its status as the IOR, as alleged in the protest, the CHB filed the entries and this error is central to the resolution of the case under 19 U.S.C. § 1520(c)(1). We also note that pursuant to 19 U.S.C. § 1641(b)(4), a broker "shall exercise responsible supervision and control over the customs business that it conducts." Such “customs business” includes the "preparation of documents or forms.” 19 U.S.C. § 1641(a)(2).

In this regard, G&G Int’l does not claim that the CHB was unaware that Mutualista should have been identified as the IOR on the CF 7501 when making entry. To the contrary, the CHB held power of attorney for Mutualista, would have reviewed the air waybill and commercial invoices, and was also listed as a principal on the copy of the CF 301 designating Mutualista’s SEB for the subject entry. Coupled with the CHB’s apparent business ties to G&G Int’l and the notices of penalty actions issued to both G&G Int’l and the CHB, a reasonable inference exists that the CHB made a deliberate choice rather than a mistake of fact, clerical error, or other inadvertence, when identifying G&G Int’l as the IOR for the subject entry. In Chrysler Corp. v. United States, the Court of International Trade (CIT) denied the plaintiff’s motion for summary judgment on its § 520(c)(1) claim because the plaintiff had
introduced no evidence that Chrysler de Mexico's issuance of purchase orders was the result of an oversight, accident or carelessness, as opposed to a willing and informed choice In fact, Plaintiff's own evidence seems to raise a question as to whether Chrysler de Mexico purchased the Cummins engines itself in order to receive a commercial advantage; a situation which casts doubt on any claim that its actions were involuntary or a mistake.

24 Ct. Int’l Trade 75, 87 (2000). Whether a commercial advantage might have inured for the CHB or G&G Int’l would be a matter of speculation, but CBP cannot dismiss the possibility that the identification of G&G Int’l as the IOR was intentional in this case. After all, the CHB was an officer of G&G Int’l and shared the same business address as G&G Int’l. The Port had already counseled the CHB against conducting customs business on behalf of G&G Int’l. In addition, the CHB appears to have been acting on behalf of G&G Int’l in an attempt to rectify this situation, as is evidenced by the invoice sent to Mutualista seeking payment of the CBP duties and interest assessed on G&G Int’l for the subject entry. That invoice is signed by the CHB, but shows that the CHB is acting as an agent of G&G Int’l. Given these circumstances, and in the absence of an explanation of the specific factual circumstances that facilitated the identification of G&G Int’l as the IOR on the CF 7501, we agree with the Port’s denial of G&G Int’l’s

Failure to Comply with 19 C.F.R. § 141.20

The CHB’s misguided attempts to change the IOR to Mutualista are not remediable under the instant § 520(c)(1) petition. Neither G&G Int’l, nor Mutualista and its broker, the CHB, complied with CBP regulations for changing the IOR. This failure is tantamount to a mistake in the construction of law, which exists when "the facts are known, but their legal consequences are not known or believed to be different than they really are." Hambro, 603 F.2d at 855. In this case, the CHB was aware of the error no later than April 2002, but its subsequent attempts to change the IOR were not in compliance with the relevant CBP regulations.

At law, the remedy for misidentification of the IOR was available pursuant to 19 U.S.C. § 1485(d), which provides, in relevant part, that the consignee in whose name an entry summary is filed shall not be liable for any additional or increased duties if

(1) he declares at the time of entry that he is not the actual owner of the merchandise, (2) he furnishes the name and address of such owner, and (3) within ninety days from the date of entry he produces a declaration of such owner conditioned that he will pay all additional and increased duties.

The CBP regulations parrot these three requirements and set forth the procedure for obtaining relief under the statute. See 19 C.F.R. § 141.20. Initially, 19 C.F.R. § 141.20(a)(1) requires that “the declaration of owner shall be filed on Customs Form 3347.” In addition, to obtain relief from contractual liability for the bond against which the entry is charged, the regulations require that the IOR “shall file a bond of the actual owner on Customs Form 301, containing the bond conditions set forth in § 113.62 of this chapter, with the port director within 90 days from the time of entry.” 19 C.F.R. § 141.20(a)(2). CBP will not accept the filing of the CF 3347 and CF 301 “unless executed by the actual owner or his duly authorized agent, and filed by the nominal consignee or his duly authorized agent.” 19 C.F.R. § 141.20(b).

Under these regulations, the onus would have been on G&G Int’l, identified to CBP as both the IOR and the UC, to file the CF 3347 and CF 301, after their execution by Mutualista or its broker, the CHB. These requirements are clearly set forth in 19 C.F.R. § 141.20, and no explanation is provided as to why the parties did not comport with the regulations. It is evident that the CHB was aware that the entry documents identified the incorrect IOR as early as the submission of the entry package in April 2002. Indeed, the corrected CF 3461 showed that Mutualista was the IOR. However, the CF 7501 submitted in tandem with the CF 3461 reflected that G&G Intl was the IOR. No reason is provided for the CHB’s inconsistent submissions. Further, the CHB did not call CBP’s attention to the error in the cover letter attached to the entry package or in its response to the CF 29 on May 23, 2002, which included the corrected CF 7501 and new CF 301.

Neither the CHB nor G&G Int’l filed a CF 3447 with the Port, nor did the CHB ever clearly call CBP’s attention to either the corrected CF 3461 or the corrected CF 7501 accompanied by the new CF 301. The CF 3347 is a condition precedent for transferring statutory liability to the actual owner of imported merchandise. Here, even though the CF 301 was submitted within 90 days of the date of entry, it was filed in the absence of the CF 3347. Thus, G&G Int’l remains statutorily liable for the subject entry. Consequently, the SEB for Mutualista, which was submitted on the CF 301, is precluded from superseding G&G Int’l’s continuous bond against which the entry summary for the subject merchandise was charged.

We further note the claim, per the CF 19, that “Customs should have accepted the amended entry that identified Mutualista as the importer.” No further explanation is provided as to why CBP would have been obliged to accept the corrected CF 3461 or the corrected CF 7501 accompanied by the new CF 301. Instead of complying with the aforementioned regulatory requirements, it appears that the CHB intended to request a change to identify Mutualista as the IOR through its separate submissions of the corrected CF 3461 and corrected CF 7501 accompanied by the new CF 301. The CHB’s belief that the corrections it submitted had been accepted by CBP because CBP never responded to these submissions is without any basis, and again suggests a mistake in its understanding of the law.

When the CHB made entry, the filing of the CF 7501 was for the purpose of ensuring that the information needed by CBP to properly assess duties was available. The CHB’s filing of the CF 7501 constituted a declaration that the consignee it identified was the owner of the subject merchandise, and CBP accepted this declaration without liability, as authorized by 19 U.S.C. § 1484(a)(2)(B). See also H.R. Rep. No. 103-361, pt. 1, at 136 (1993) (“The requirement that importers use reasonable care in making entry establishes a “shared responsibility” between Customs and the trade community, and allows Customs to rely on the accuracy of the information submitted by importers and, in turn, streamline entry procedures.”).

The Port properly relied upon the information in the CF 7501 filed when the CHB made entry, and given that the corrections were not submitted in compliance with the procedures set forth in 19 C.F.R. § 141.20, the Port was not legally obliged to process the corrections. See Fujitsu Compound Semiconductor, Inc v. United States, 246 F. Supp. 2d 1334 (Ct. Int'l Trade 2003) (holding that for CBP to make mistake in failing to take an action, the protestant must show that CBP had a legal obligation to take that action); aff’d, 363 F.3d 1230 (Fed. Cir. 2004). Regardless of the actions of the CHB, once G&G Int’l determined that it wanted to avoid liability for the duty payment as the IOR, it was required to comply with 19 C.F.R. § 141.20, and no relief is available to the protestant under 19 U.S.C. § 1520(c)(1).


The protest should be DENIED. The protestant has not shown with documentary evidence, nor is it manifest from the record, that a mistake of fact, clerical error, or other inadvertence is responsible for the misidentification of G&G Int’l as the IOR.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision 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.


William G. Rosoff, Chief
Duty and Refund Determination Branch

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