ENT-1-03-CO:R:C:E 224015 JRS
Richard M. Wortman, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
RE: Right to Make Entry; 19 U.S.C. 1484(a)(2)(C); Customs
Directive No. 3530-02, issued November 6, 1984
Dear Mr. Wortman:
This is in response to your ruling request dated June 10,
1992 (File 92-3102-64(1)I) on behalf of your client, OCS America,
Inc. (OCS). Our decision follows.
FACTS:
OCS is a United States distributor of Japanese language
newspapers and periodicals and also operates a courier service
for the carriage of documents, including business documents,
between Japan and the United States. OCS is a wholly-owned
subsidiary of its parent company, Oversea Courier Service Co.,
Ltd. (OCS Japan). OCS acts as a commissioned agent for OCS Japan
with respect to the solicitation, importation and distribution of
Japanese language newspapers and periodicals throughout the
United States. Subscriptions may be solicited by OCS Japan or
directly by OCS. In either case, OCS is paid a commission for
its services based on a long-term contract between them.
OCS Japan purchases and takes title to all newspapers and
periodicals which are to be shipped to the United States. OCS
Japan forwards the newspapers on a daily basis in bunches of 500
to 1500. In order to expedite the distribution of the newspapers
and periodicals, each newspaper imported by OCS is pre-addressed
to the individual subscriber. Upon receipt, OCS will facilitate
the delivery of newspapers and periodicals, either by its own
conveyance, a common carrier or by mail. Title to the newspapers
and periodicals passes directly from OCS Japan to the individual
subscribers after importation.
ISSUE:
Does OCS Japan or its subsidiary, OCS, qualify as an
"importer of record" with the right to make entry in the given
situation?
LAW AND ANALYSIS:
The statutory provision, 19 U.S.C. 1484(a)(2)(C), provides
that entry shall be filed either by 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 1641 of this title (that is, a
licensed customs broker). A nominal consignee may designate a
customs broker to make entry on his behalf but may not make entry
on his own behalf. If a customs broker makes entry for a nominal
consignee, the broker must appear as importer of record. These
are the only persons who can act as importers of record.
"Owner" or "purchaser" is defined in Customs Directive 3530-
02, dated November 6, 1984, entitled "Right to Make Entry," to
be:
any party with a financial interest in the transaction
including, but not limited to, the actual owner of the
goods, the actual purchaser of the goods, a buying or
selling agent, a person or firm who imports on
consignment, a person or firm who imports under loan or
lease, a person or firm who imports goods for repair or
alteration or further fabrication, etc. (Underlining
added.) Any such owner or purchaser may make entry on
his own behalf or may designate a licensed customhouse
broker to make entry on his behalf and may be shown as
the importer of record on the CF 7501. The terms
"owner" or "purchaser" would not include a "nominal
consignee" who effectively, possesses no other right,
title, or interest in the goods except as he possessed
under a bill of lading, air waybill, or other shipping
document.
It is clear that OCS Japan having title to the merchandise
upon importation is the "actual owner" of the newspapers and
periodicals and has the right to make entry as an "importer of
record."
The importer contends that inasmuch as OCS is both a
subsidiary and an agent of OCS Japan with respect to the
importation of newspapers and periodicals owned by OCS Japan, OCS
has the right to make entry in its own name. From the broad
construction given to the terms "owner" or "purchaser" in the
above-quoted Customs Directive, we conclude that OCS qualifies as
an "importer of record" since it falls within the category of
"a buying or selling agent" of the directive. OCS acts as an
agent for its parent when it sells subscriptions on a continuing
contractual basis; does not take title to the imported
merchandise; and has a financial interest in the imported
merchandise by virtue of its commission earned by soliciting
sales of the newspapers and periodicals and in the handling of
the merchandise.
Thus, both OCS and OCS Japan may be considered an "importer
of record" for entry purposes and, therefore, may be listed as
such on the CF 3461 (block 11) and CF 7501 (block 11) and may
utilize its IRS, Social Security or Customs-assigned number in
block 9 (CF 3461) and block 12 (CF 7501).
We note that when merchandise is imported having been sold,
or consigned, to a person in the United States, the name, street
address, and appropriate identification number or that person, as
provided in section 24.5 of the Customs Regulations (19 CFR
24.5), shall be shown on the entry documents (CF 3461, 3461 ALT,
7501).
HOLDING:
Both OCS Japan and OCS, its subsidiary in the United States,
qualify as an "importer of record" with the right to make entry
in accordance with Customs Directive 3530-02, dated November 6,
1984.
Sincerely,
John Durant, Director