ENT-1-01-CO:R:C:E 225317 AJS
District Director of Customs
U.S. Customs Service
101 E. Main Street
Norfolk, VA 23510
RE: Internal Advice; 19 U.S.C. 1520(c)(1); Godchaux-Henderson Sugar
Co., Inc. v. U.S.; "clerical error"; "mistake of fact";
"inadvertence"; 19 U.S.C. 1484; "importer of record"; Customs
Directive 3530-02; National Customs Brokers and Forwarders
Association of America v. U.S.
Dear Sir:
This is in reply to your request of April 6, 1994, for
internal advice pursuant to 19 CFR 177.11(a). Your file reference
is CLA-2-ADD:CO:CTB JM.
FACTS:
The entry was filed by Cavalier Shipping Co., as broker for
the importer of record, Global Nuclear Services and Supply (GNSS),
on February 11, 1994. The entry (Customs Form (CF) 3461) shows
that an elected entry date of February 12, 1994, was selected, as
permitted by 19 CFR 141.68. The entry also shows that the
merchandise was released by Customs on February 12, 1994, the
elected entry date.
The file shows that from February 7, 1994 to February 11,
1994, Customs officers fully explained the consequences of an
election to be the importer of record with Edlow International and
the United States Enrichment Corporation (USEC). When the entry
was made the broker had a power of attorney from GNSS but was not
authorized to act for the USEC until February 25, 1994.
ISSUE:
Whether election to be an importer of record by a person is a
clerical error, mistake of fact or other inadvertence correctable
under 19 U.S.C. 1520(c)(1).
-2-
LAW AND ANALYSIS:
19 U.S.C. 1520(c)(1) provides that Customs may reliquidate an
entry to correct a "clerical error, mistake of fact, or other
inadvertence . . . 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." This provision "is not
remedial for every conceivable form of mistake or inadvertence
adverse to an importer but rather the statute offers 'limited
relief'." Godchaux-Henderson Sugar Co., Inc. v. United States, 85
Cust. Ct. 68, 74, C.D. 4874, 496 F. Supp. 1326 (1980)(Godchaux).
A "clerical error" has been stated by the courts to be "a
mistake made by a clerk or other subordinate, upon whom devolves no
duty to exercise judgement, in writing or copying the figures or in
exercising his intention." PPG Industries, Inc. v. United States,
7 CIT 118, 124 (1984). The evidence shows that the election to be
the importer of record was an informed choice by GNSS after
considering available options. It was not the error of a clerk in
transposing figures. Therefore, we conclude that no clerical error
occurred.
A "mistake of fact" has been described as "a mistake which
takes place when some fact which indeed exists is unknown, or a
fact which is thought to exists, in reality does not exist." C.J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
22, C.D. 4327, 336 F. Supp. 1395, 1399 (1972), aff'd 61 CCPA 90,
C.A.D. 1129, 499 F.2d 1277 (1974). There is no evidence to show
that a mistake of fact occurred.
Inadvertence is a somewhat broader term, and has been defined
as "an oversight or involuntary accident, or the result of
inattention or carelessness, and even as a type of mistake." Id.
It is clear from the record of discussions reported that the
election by GNSS to be the importer of record was not due to a lack
of knowledge as to the consequences of that election. Under 19 CFR
141.67, a person may withdraw any entry papers until the
merchandise was authorized for release by Customs. That
authorization occurred on February 12, 1994. The election to be
the importer of record became binding on GNSS. The evidence simply
does not support a finding that any inadvertence occurred.
It is apparent that between February 7, 1994 and February 11,
1994, the USEC changed its position on whether it would serve as
the importer of record. The issue is whether Customs has authority
to disregard the election of an otherwise qualified person to be
the importer of record.
-3-
In Godchaux, the Customs Court discussed the applicability of
section 1520(c)(1). In that case, the plaintiff imported sugar
under an immediate delivery permit but did not file a consumption
entry until a later time. At the time of importation, the sugar
was eligible for duty-free treatment under the Generalized System
of Preferences. However, after importation and before entry, the
duty-free status of the sugar was terminated. The plaintiff sought
relief pursuant to section 1520(c)(1) for its failure to file the
entry before the duty-free status was terminated. In this
instance, relief is sought pursuant to section 1520(c)(1) for the
failure to use a certain importer of record on the entry documents.
The Customs Court held in Godchaux that plaintiff's failure to
file a duty-free entry by the deadline prescribed by law was not
within the scope of section 1520(c)(1). Godchaux at 74. The court
stated that by the express terms of section 1520(c)(1) plaintiff
was required to establish a "clerical error, mistake of fact, or
other inadvertence . . . in an entry, liquidation, or other customs
transaction . . ." (emphasis in original). Id. The court further
stated plaintiff's mistake or inadvertence was not in an entry, but
rather in failing to make an entry prior to a certain date. Id.
The court added that had plaintiff, through mistake of fact or
inadvertence, filed a dutiable entry prior to the termination date
for duty-free status and the entry was liquidated accordingly, the
entry could be reliquidated duty free pursuant to section
1520(c)(1). Id at 75.
In this case, the claimed mistake or inadvertence was not in
the entry but rather in failing to name a certain importer of
record because the local broker lacked a power of attorney for that
importer. As stated previously, there was no mistake in the entry
which was filed. GNSS was a permissible importer of record. See
NCBFA infra. Accordingly, we find the rationale of Godchaux
instructive for determining that the election of an otherwise
eligible person to be the importer of record is not subject to
reliquidation under section 1520(c)(1).
19 U.S.C. 1484(a)(1) states that one of the parties qualifying
as the "importer of record" under paragraph (2)(C) of this section
shall make entry as described in paragraph (a)(1)(A) of this
section. Section 1484(a)(2)(C) states that when entry of
merchandise is made, the required documentation 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 (i.e., a customs broker). The terms "owner" or
"purchaser" are described as "any party with a financial interest
in a transaction, including, but not limited to, the actual owner
of the goods, the actual purchaser of the goods, a buying or
-4-
selling agent . . ." Customs Directive 3530-02 (November 6, 1984).
GNSS declared that it met the statutory criteria by electing to
serve as the importer of record and Customs accepted this
declaration, as authorized by 19 U.S.C. 1484(a)(2)(B).
The Court of International Trade (CIT) interpreted section
1484 in National Customs Brokers and Forwarders Association of
America v. United States, 14 CIT 108, 731 F.Supp 1076 (1990)
(NCBFA). NCBFA involved an action to compel the Secretary of the
Treasury and the Commissioner of Customs to promulgate regulations
establishing a certain hierarchy among those permitted to enter
merchandise transported by international courier services in
consolidated shipments. In NCBFA, the plaintiff contended that a
broker chosen by a courier service may not make entry of individual
shipments in a consolidated shipment if another broker has been
chosen by the owner or purchaser of the individual shipment. This
case is similar in that Customs is being asked to determine from
which otherwise eligible person it should accept entry.
In regards to section 1484(a)(2)(C), the court in NCBFA stated
that the term "a person" "appropriately designated" can be read
only to signify one who is designated in a suitable or proper
manner. NCBFA at 111. The court also stated that such person must
hold a valid customs brokers license. Id. The court concluded
that "[i]f this person, therefore, has been designated in a proper
or suitable manner by either the owner, purchaser, or consignee,
and if this person is a properly licensed customs broker, such
person may make entry of the items in the shipment." Id. As
stated previously, GNSS elected to be the importer of record.
In NCBFA, the court stated that if a specific broker is named
or designated under section 1484 and a broker other than the one
specifically named or designated enters the merchandise and damage
results to the owner or broker originally designated, the parties
should look to their contracts for remedies. NCBFA at 114. The
court also stated that leaving to the parties to protect themselves
through contract or through their choice of carrier appears more
appropriate than compelling Customs to prohibit the entry of
consolidated shipments in the manner requested. Id. We are
likewise of the view that leaving to the parties to protect
themselves through contract or other means more appropriate than
compelling Customs to determine from which eligible person to
accept an entry. The court added that under the terms of the
statute Customs remains free to deal with any licensed broker
chosen by an owner, purchaser or consignee. Id. In this case,
Customs was simply following a similar course of action in
accepting GNSS's election to be the importer of record. Therefore,
-5-
we find the above analysis from NCBFA supportive for determining
that no error occurred in the subject entry which may be corrected
pursuant to section 1520(c(1).
HOLDING:
The subject entry may not be reliquidated pursuant to 19
U.S.C. 1520(c)(1).
The Office of Regulations and Rulings will take steps to make
this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels 60 days from the date of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division