LIQ-9-01-RR:CR:DR 226742 SAJ
Port Director of Customs
U.S. Customs Service
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, New York 10048-0945
RE: Application for further review of Protest No. 1001-95-109552; 19 U.S.C. 1520(c)(1); mistake of fact;
reliquidation; Taban Co. v. United States;
Zaki Corp. v. United States; reasonable care
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and issues
raised, and our decision follows.
FACTS:
This protest has been filed against your denial of a request
for reliquidation of entry numbers 109-03xxx01-8 (01-8), 109-03xxx74-8 (74-8)109-03xxx79-4 (79-4), 109-03xxx98-9 (98-9), and
109-03xxx32-6 (32-6) pursuant to 19 U.S.C. 1520(c)(1).
This protest concerns entries filed on behalf of Gino
Danielli Leather House (protestant), regarding the liquidation of
merchandise consisting of shearling jackets (merchandise) from
Turkey.
Customs Form (CF) 7501 shows that entry number 01-8 was
entered on October 5, 1994 under subheading 4203.10.4060/6%,
Harmonized Tariff Schedule of the United States (HTSUS). The CF
7501 describes the imported merchandise as "W.G.&INFNTS' LEATHR
COATS&JACKT." Entry number 01-8 was liquidated on February 10,
1995. The entry documents attached to entry number 01-8 are the
following:
* Entry/Immediate Delivery (CF 3461) showing an arrival
date of October 5, 1994;
* Document reflecting an arrival date of October 5, 1994
by Delta Airlines Flight No. DL73;
* Invoice number 085 from Distas describing the goods as
"102 STYLE 118 Ladies jackets" and 102 STYLE BOB KELLY
Men's jackets";
* Packing list dated September 29, 1994 itemizing the
styles of the jackets;
* Bill of lading number 006-3267-4740 from Delta Airlines
describing the merchandise as "LAMBSKIN LADIES JACKETS
204 PCS"; and
* Customs Bond (CF 301).
Entry number 74-8, which was entered on May 12, 1994, also
describes the imported merchandise on CF 7501 as "W.G.&INFNTS'
LEATHR COATS&JACKT." Entry 74-8 was liquidated on August 26,
1994. The entry documents attached to entry number 74-8 are the
following:
* Entry/Immediate Delivery (CF 3461) showing an arrival
date of May 12, 1994;
* Carrier's Certificate number 074-5169-29-00 describing
merchandise as "LADIES GARMENTS" and reflecting an
arrival date of May 11, 1994 by KLM Royal Dutch
Airlines Flight No. KL643;
* Invoice number 071 dated May 9, 1994 from Distas
describing the goods as "LADIES JACKET, MEN'S
JACKET,[and] LADIES WAISTCOAT"; and
* Customs Bond (CF 301) dated May 12, 1994.
The CF 7501 reveals that entry number 98-9 was entered under
subheading 4203.10.4010/6%, HTSUS on August 19, 1994 and
describes the merchandise as "ANORAKS, COATS & JACKTS, OTHER".
Entry number 98-9 was liquidated on February 3, 1995. Entry
number 01-8 was liquidated on February 10, 1995. The entry
documents attached to entry number 98-9 are the following:
* Entry/Immediate Delivery (CF 3461) showing a
handwritten date of
August 19, 1994;
* Carrier's Certificate reflecting an arrival date of
August 18, 1994 by Delta Airlines Flight No. DL107,
describing the merchandise as "30 Lambskin Garments";
* Invoice number 081 dated August 10, 1994 from Distas
describing the goods as "300 LADIES JACKETS (STYLE
20229-32)";
* Packing list dated August 10, 1994 itemizing the styles
and sizes of the jackets; and
* Bill of lading number 006-3267-4725 dated August 16,
1994 from Delta Airlines describing the merchandise as
"LAMBSKIN GARMENTS 300 PCS".
For entry number 79-4, the CF 7501 reflects that the
merchandise was entered on June 6, 1994 under subheading
4203.10.4060/6%, HTSUS and describes the imported merchandise as
"W.G.&INFNTS' LEATHR COATS&JACKT." Entry number 79-4 was
liquidated on October 14, 1994. The entry documents attached to
entry number 79-4 are the following:
* Entry/Immediate Delivery (CF 3461) showing an arrival
date of June 6, 1994;
* Carrier's Certificate reflecting an arrival date of
June 5, 1994 (IAD) and June 6, 1994 (NYC) by United
Airlines Flight No. CW UA TRUCK, describing the
merchandise as 4 pieces of "Lambskin Jackets";
* Document titled "RECAP" of importers deducts freight
and insurance from C.I.F. value to obtain FOB;
* Invoice (without a number printed) dated May 31, 1994
from Serpicioglu describing the goods as "28 MD.MIRTA
LADIES JACKETS" and "12 MD.7055 LADIES JACKET";
* Packing list from Serpicioglu dated May 31, 1994
itemizing the styles and sizes of the jackets; and
* Bill of lading number 5926-6535 from United Airlines
describing the merchandise as "LAMBSKIN LADIES
JACKETS".
The CF 7501 reveals that entry number 32-6 was entered under
subheading 4203.10.4010/6%, HTSUS on September 19, 1994 and
describes the merchandise as "ANORAKS, COATS & JACKTS, OTHER".
Entry number 32-6 was liquidated on January 20, 1995. The entry
documents attached to entry number 32-6 are the following:
* Entry/Immediate Delivery (CF 3461) showing a
handwritten date of September 20, 1994;
* Document titled "RECAP" of importers deducts freight
and insurance from C.I.F. value to obtain FOB;
* Invoice number 029 dated September 7, 1994 from
Serpicioglu describing the goods as "LADIES JACKETS";
* Packing list from Serpicioglu dated September 7, 1994
itemizing the styles and sizes of the jackets; and
* Bill of lading number 006-3267-4736 from Delta Airlines
describing the merchandise as "LAMBSKIN LADIES
JACKETS".
The file contains five letters (one for each of the subject
entries) dated June 19, 1995. In each letter, Mr. William Ortiz
(broker) requests reliquidation of entry numbers 01-8, 79-4, 98-9, 79-4, and 32-6. In each letter, the broker requests
reliquidation "to correct inadvertence [under 19 U.S.C.
1520(c)(1)] which initially caused the improper liquidation."
The broker attached a corrected CF 7501 with each letter,
changing the classification of the merchandise to
A4303.10.0060/FREE, since the broker was alerted of the fact that
the merchandise is furskin (i.e., wool) and not leather. With
each letter, the broker also enclosed a letter of explanation
dated June 23, 1995 from Distas, the manufacturer of the importer
merchandise, apologizing for the "incorrect" wording on the
invoices. We note that the description of the invoices are not
incorrect or misleading. The description of the merchandise on
the Distas invoices simply do not state the component material of
the jackets.
The protestant did not protest the liquidation of the
subject entries within the statutory time frame (within 90 days
of the liquidation of the subject entries) set forth under 19
U.S.C. 1514. The subject protest, filed under Customs Form (CF)
6445 dated November 6, 1995, makes a 520(c)(1) claim for the
merchandise to be entered "Free". Protestant argues that because
the invoices contained no reference to the merchandise's
component materials, the broker relied on past shipments where
the main component was leather rather than shearling. Please
note that in four out of the five entries at issue, the entry
documents contain the correct reference to the component
materials (i.e., lambskin) involved. The only entry that does
not contain the correct description of the subject merchandise in
the entry documents is entry number 74-8. We note that the file
is missing a bill of lading for entry number 74-8.
The broker does not state anywhere in the protest that the
entry documents were not reviewed. As stated above, the entry
documents for entry numbers 01-8, 79-4, 98-9, and 32-6 correctly
describe the subject merchandise as lambskin jackets/garments in
the bill of ladings. (Entry number 74-8 is the only entry
protested that does not contain an accurate description of the
subject merchandise.) We note that the term "lambskin" has been
defined as:
1. The hide of a lamb, esp. when dressed without removing
the fleece.
2. Leather made from the dressed hide of a lamb. Webster's
II New Riverside
University Dictionary 674 (1988).
1. The skin of a lamb, esp. when dressed with its wool, and
used for clothing.
2. Leather made from such skin. 3. Parchment made from such
skin. The
Random House Dictionary of the English Language The
Unabridged Edition 803 (1973).
Also in the file is an affidavit of the broker who
supervised the preparation of the subject entries on behalf of
protestant. In the affidavit, the broker states that "[t]he
entries covered shearling jackets which were properly
classifiable under Harmonized Tariff Schedule subheading
A4303.10.0060 as other furskin apparel articles, free of duty."
The broker also states in the affidavit that "at the time of
original entry, [the broker] believed the jackets were leather
jackets and, therefore, [the broker] instructed [his] entry clerk
to enter them under subheading 4203.10.4060, at 6% ad valorem."
In the affidavit, the broker asserts that he "erroneously
believed that the jackets were leather because the jackets were
consigned to Gino Danielli Leather House (emphasis added) and
because [the broker] routinely process[es] entries of leather
garments for this importer."
Customs denied the reliquidation of the subject entries and
this protest ensued. The Application for Further Review (AFR)
was forwarded to this office.
On April 8, 1997, this office sent protestant's counsel a
questionnaire to facilitate a determination with respect to this
AFR. Because incomplete answers to the questionnaire were
submitted, protestant's counsel was advised that this protest
would be processed 30 days after February 6, 1998 with the filed
information.
In response to the questionnaire, the following information
was provided on October 7, 1997:
* Ofra Dimant of Gino Danielli Leather House makes order
requests to Distas, the
factory of the subject merchandise. Ofra Dimant also
reviews the merchandise ordered. (p. 2, #1 and #2)
* The broker states that the commercial invoice and packing
list were provided to
protestant by Distas. (p. 2, #3)
* The broker confirms that he and Jeff Laufer of S.J. Stile
Associates, Ltd. (brokerage firm) and Ofra Dimant of Gino
Danielli Leather House, were involved in the importation of
the subject merchandise. However, the broker states that
the brokerage firm did not examine the imported merchandise.
(p. 2, #4 and #5)
* The broker states that he did not contact anyone at Gino
Danielli Leather House because "it was the same basic
merchandise that arrived from previous shipments."
Moreover, the broker states that he "relied on ... previous
entries which [were] ... classified as leather jackets [and]
... assumed these items were [as well]." (p. 2, #6 and #7)
* According to the broker, Ofra Dimant processes its broker's
bill for services rendered to the protestant. (p. 3, #9)
* The broker confirms that a commercial invoice and packing
list was provided by the shipper, Distas. (p. 3, #11)
* The broker states that he, William Ortiz, is responsible for
maintaining and producing entry documentation upon Customs
request. (p. 3, #13)
* The broker asserts that Ofra Dimant called to inquire why
her shearling coats were being entered as leather, which was
the first indication to the broker that the subject
merchandise was not leather goods. The broker explains that
the "classification as leather was based on [the]...
assumption that "Leather House" was importing leather
apparel." (p. 3, #14)
* The broker emphasizes that the mistake of fact alleged is
that the broker "prepared the entries believing that the
coats were of leather absent any description to the
contrary." (P. 3, #15)
No information was provided as to the procedure by which
protestant reviews the work of its broker with respect to the
payment of the broker's bill for services rendered. When this
information was requested, the broker stated that he has "no
information as to the internal workings at Gino Danielli Leather
House." Questionnaire dated October 7, 1997, p. 3, # 8.
ISSUE:
Whether Customs properly denied protestant's request to
reliquidate the subject entries under 19 U.S.C. 1520(c)(1).
LAW AND ANALYSIS:
Initially, we note that the subject protest against the
denial of the 1520(c)(1) petition was timely filed pursuant to 19
U.S.C. 1514(c)(3)(B). The petitions were denied on August 7,
1995, and the protest against this denial was filed on November
6, 1995, within 90 days from August 7, 1995 as prescribed under
19 U.S.C. 1514(c)(3)(B). The issue at hand, therefore, is
whether the denial of the 1520(c)(1) petition was proper.
A protest against the liquidation of an entry under 19
U.S.C. 1514 must be filed within 90 days after the date of
liquidation (19 U.S.C. 1514(c)(3)). Otherwise, the tariff
treatment of merchandise is final and conclusive. Protestant's
request for reliquidation under 19 U.S.C. 1514 was untimely
filed, since more than 90 days had elapsed between the date of
liquidation and the filing of the protest. The entries at issue
were liquidated on February 10, 1995 and August 26, 1994, and
were not protested for the classification of the merchandise
until June 19, 1995.
19 U.S.C. 1514 sets forth the proper procedure for an
importer to protest the classification and appraisal of
merchandise when it believes Customs has misinterpreted the
applicable law. 19 U.S.C. 1520(c)(1) is an exception to the
finality of section 1514. Therefore, although the protest under
consideration is untimely under 19
U.S.C. 1514, we note that the courts have treated untimely
protest under 19 U.S.C. 1514 as seeking relief under 19 U.S.C.
1520(c), if such protest meet the requirements for claims under
19 U.S.C. 1520(c)(1).
The relief provided for in section 1520(c)(1) is not an
alternative to the relief provided for in the form of protests
under section 1514. Section 1520(c)(1) only affords "limited
relief in situations defined therein." Phillips Petroleum Co. v.
United States, 55 CCPA 7, 11, C.A.D. 893 (1966), quoted in
Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct.
68, 69, C.D. 4874, 496 F. Supp. 1326 (1980). Under section
1520(c)(1), 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, when certain
conditions are met. The error must be adverse to the importer
and manifest from the record or established by documentary
evidence and brought to the attention of Customs within one year
after the date of liquidation.
The conditions required to be met under 19 U.S.C. 1520(c)(1)
are that the clerical error, mistake of fact, or other
inadvertence must be adverse to the importer, manifest from the
record or established by documentary evidence. See ITT Corp. v.
United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994). In the case
at hand, protestant timely filed the section 1520(c)(1) claim for
entry numbers 01-8 and 74-8, 79-4, 98-9 and 32-6.
Protestant contends that the inadvertence correctable under
1520(c)(1) was that the broker misunderstood the nature of the
imported merchandise due to an improper description on the
commercial invoice. See letters dated June 19, 1995 (one letter
was sent for each of the five subject entry numbers 01-8, 74-8,
98-9, 79-4, and 32-6) from the broker, William Ortiz. The broker
entered the subject merchandise under the "leather" subheading
(4203.10.4060/6%, HTSUS and 4203.10.4010/6%, HTSUS). It is
noted that contrary to the broker's assertions, the entry
documents (i.e, the bill of ladings for entry numbers 01-8, 79-4,
98-9, and 32-6) correctly describe the subject merchandise as
lambskin jackets/garments), which are duty-free. (Entry number
74-8 is the only entry protested that does not contain a bill of
lading. Therefore, it is uncertain whether an accurate
description of the subject merchandise was provided.)
Protestant relies on HQ 223524 dated February 13, 1992. In
HQ 223524, it was held that there are instances where
misclassifications are correctable under the scope of section
520(c)(1). Customs cited the presence of misleading language,
which in this case was "Chief Value Wool" when in fact was "Chief
Value Silk", caused the broker to misunderstand the nature of the
entered merchandise. See also, Taban Co. v. United States, 960
F. Supp. 326 (CIT 1997)(reprinted in Customs Bulletin, March 19,
1997, p. 43) and Zaki Corp. v. United States, 960 F. Supp. 350
(CIT 1997)(reprinted in Customs Bulletin, April 2, 1997, p.
84)(wherein the U.S. Court of International Trade (CIT) found
that there was a mistake of fact, rather than one of law, because
"the 'exact physical properties' of the merchandise were not
known to the broker or to Customs in this case"). Taban, Customs
Bulletin at p. 53; Zaki at 95-96.
In this case, unlike Taban, Zaki, and HQ 2235243, the
subject entries were denied because the entry documents did not
contain misleading language. In the bill of ladings for entry
numbers 01-8, 79-4, 98-9, and 32-6, the subject merchandise is
correctly described as lambskin jackets/garments. Moreover,
there is no evidentiary indication that the importer of the
merchandise or the broker was unaware of the nature of the
merchandise. No where in the protest is it asserted that the
broker did not review the entry documents. The court in Taban
and Zaki also concluded that the "broker and Customs were unaware
[of the exact physical properties of the merchandise] until more
than ninety days after their liquidation and therefore
plaintiff's broker could not have relayed the information to
Customs for its consideration in classifying and liquidating the
merchandise at issue." Id., Taban at 54; Zaki at 95-96.
Taban and Zaki are distinguishable from the case at hand
since in both court cases, the evidentiary documents were unclear
as to the nature of the merchandise which caused the incorrect
classification. For instance in Taban and Zaki, the documents
provided a "limited description of the imports," Zaki, Id. At 47;
Taban Id. at 88). In the case at hand, the entry documents in
all the subject entries, except entry number 74-8, contain a
clear description of the merchandise. See Bill of ladings for
entry numbers 01-8, 79-4, 98-9, and 32-6, which correctly
describe the subject merchandise as lambskin jackets/garments.
The broker, in the instant case does not assert that the
entry documents were ignored. The broker simply states that he
"relied on [the] history of previous entries which [were]
classified as leather jackets which [caused the assumption that]
these items were [also leather]." Response to questionnaire
dated October 7, 1997, p.3, #7. The broker also asserts that the
classification of leather was based on the assumption that
because the name of the protestant company contains the words
"Leather House", protestant was importing leather apparel.
Response to questionnaire dated October 7, 1997, p.3, # 14. The
broker emphasizes that "[t]he mistake in fact that we are
alleging is that we prepared the entries believing that the coats
were of leather absent any description to the contrary."
Response to questionnaire dated October 7, 1997, p.3, #15.
However, the bill of ladings for entry numbers 01-8, 79-4, 98-9,
and 32-6, do in fact correctly describe the subject merchandise
as lambskin jackets/garments.
Furthermore, in the instant case, there is no allegation
that Customs did not know that the merchandise at issue consisted
of shearling jackets, just that Customs was not aware of the
shearling jacket entries. Had the import specialist considered
the
classification of the shearling jackets, the decision to classify
the merchandise as entered would be a mistake of law on the part
of Customs. In this case, there is no evidence that Customs
considered the classification of the entries at issue.
Protestant's claim is that the subject merchandise was
classified under the wrong HTSUS provision. The courts have
consistently taken the position that an erroneous classification
of merchandise is not a clerical error, mistake of fact, or other
inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is
an error in the construction of law. See, Mattel Inc. v. United
States, 336 F. Supp. 1395, 68 Cust. Ct. 17, C.D. 4327, aff'd. 499
F.2d 1277, 61 CCPA 90 (1972).
The broker, in the instant case, has also submitted an
affidavit testifying that he erroneously believed the jackets
were leather and that this mistake of fact, not mistake of law,
resulted in the misclassification of the subject merchandise.
However, there is no evidence of this assertion. Courts have
allowed affidavits to establish evidence in some instances. The
Court in Andy Mohan, Inc. v. United States, 74 Cust. Ct. 105,
C.D. 4593, 396 F. Supp. 1280 (1975), aff'd 63 CCPA 104, C.A.D.
1173, 537, F.2d 516 (1976), noted that affidavits provided as
evidence are only "... entitled to little weight, being
incomplete and based on unproduced records, and having been
executed years after the transaction to which they attest."
Mohan, 63 CCPA at 107. In the case at hand, the affidavit is
"based on unproduced records." The affiant, Mr. Ortiz, does not
provide evidence of the assertions made.
A mistake of fact must be manifest from the record or
established by documentary evidence. The CIT has ruled that mere
assertions without supporting evidence will not be regarded as
sufficient to overturn a Customs official's decision. Bar Bea
Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983).
Further, upon an assertion that merchandise has been wrongly
classified due to a mistake of fact, "it is incumbent on the
plaintiff to show by sufficient evidence the nature of the
mistake of fact." PPG Industries, Inc. v. United States, 4 CIT
143, 147-148 (1982), citing Hambro Automotive Corp. v. United
States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220, 1222 (1978)
aff'd. 66 CCPA 113, C.A.D. 1231, 603 F.2d 850 (1979). In the
instant case, the evidence of the entry papers contradict the
broker's assertion that he was unaware of the merchandise when he
prepared the entry summary and filed it with Customs.
In ITT Corp. v. United States, 24 F.3d 1384, 1387 (Fed. Cir.
1994), the court found that reliquidation under 19 U.S.C. 1520(c)
requires both notice and substantiation. The protestant has
provided Customs with timely and adequate notice under the
guidelines set forth for 520(c) claims. However, with respect to
substantiation, adequate evidence has not been provided. In a
footnote on p. 1389 of the ITT Corp. case, the type of evidence
that can be considered includes credible proof "of the underlying
facts that demonstrate the existence of such error," and the
plaintiff/importer bears the burden of establishing the mistake
of fact "by demonstrating the underlying facts" needed to prove
the allegation. The plain language of the statute require that
the error be established by documentary evidence, if it is not
manifest from the record.
Although the invoices did not contain the component material
of the imported merchandise, the broker has not stated that the
entry documents were not reviewed to ascertain the nature of the
imported merchandise. Given the clear description of the
subject merchandise described in the bill of ladings, which is
not disputed to be inaccurate, the admission that those bill of
ladings were filed with the entries renders the broker's
affidavit that he did not know the nature of the merchandise
unconvincing.
In fact, the broker admitted in response to the
questionnaire sent by Customs that the subject entries were
prepared "believing that the coats were of leather absent any
description to the contrary." Emphasis added. Response of
questionnaire dated October 7, 1997, p.3, #15. As stated above,
the description of goods in the bill of ladings clearly describes
that the subject merchandise consisted of lambskin
jackets/garments for entry numbers 01-8, 79-4, 98-9, and 32-6.
Courts consult dictionaries as reliable sources of
information. United States v. C.J. Tower & Sons of Buffalo,
N.Y., 48 CCPA 87, C.A.D. 770 (1961); Trans-Atlantic Co. v. United
States, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973). As
stated in the FACTS portion of this protest, it is noted that the
term "lambskin" has been defined as:
1. The hide of a lamb, esp. when dressed without removing
the fleece.
2. Leather made from the dressed hide of a lamb. Webster's
II New Riverside
University Dictionary 674 (1988).
1. The skin of a lamb, esp. when addressed with its wool,
and used for clothing.
2. Leather made from such skin. 3. Parchment made from such
skin. The
Random House Dictionary of the English Language The
Unabridged Edition 803 (1973).
Given the description on the bill of ladings for entry
numbers 01-8, 79-4, 98-9, and 32-6 (i.e., "lambskin"
jackets/garments), the broker failed to exercise the reasonable
care required by the Customs regulations. In response to the
questionnaire dated October 7, 1997, the broker admits that he
"did not contact anyone at Gino Danielli" to ascertain the nature
of the imported merchandise. (P. 2, #6) It was not until the
client contacted the broker inquiring "why [the] shearling coats
were being entered as leather" that the broker was alerted to the
fact that the merchandise had been misclassified. Response to
questionnaire dated October 7, 1997, p.3, # 14. Furthermore, in
response to the questionnaire dated October 7, 1997, the broker
also
admits that no one from the brokerage firm examined the subject
imported merchandise. (P. 2, #5) Therefore, for entry numbers
01-8, 79-4, 98-9, and 32-6, protestant's 1520(c)(1) claim is
denied.
Since there is no bill of lading in the file for entry
number 74-8, it is uncertain whether there was a clear
description as to the nature of the merchandise. Therefore for
entry number 74-8, we will grant protestant's 1520(c)(1) claim.
However, with regard to entry number 74-8, the broker neglected
to use the means at its disposal to guarantee compliance with the
regulations. This neglect by the broker would not appear to be
the exercise of reasonable due care and diligence. For entry
number 74-8, Customs may assess a penalty under the appropriate
culpability level of 19 U.S.C. 1592.
HOLDING:
The protest is DENIED and relief may not be granted for
entry numbers 01-8,
79-4, 98-9, and 32-6 under 19 U.S.C. 1520(c)(1) for the reasons
given in the LAW AND ANALYSIS portion of this ruling. For entry
number 74-8, it is unclear from the evidence presented in file
whether the entry documents provided a clear description of the
imported merchandise. Therefore, protestant's mistake of fact
claim under 1520(c)(1) is GRANTED. However, the broker neglected
to use the means at its disposal to guarantee compliance with the
regulations. with respect to entry number 74-8. Therefore,
Customs may assess a penalty under 19 U.S.C. 1641 or 19 U.S.C.
1592,
as appropriate, if it is determined there was a lack of exercise
of reasonable due care and diligence on the part of the broker.
Consistent with the decision set forth above, you are hereby
directed to deny the subject protest. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision should be
mailed by your office 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 the decision. Sixty days from the date of the decision
of the Office of Regulations and Rulings will take steps to make
the 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.
Sincerely,
John Durant, Director,
Commercial Rulings Division