HQ 223904: Request for comments concerning who has right to make entry;19 U.S.C. 1484; 19 CFR 142.3; T.D. 90-42; HQ 223016; CustomsDirective 3530-02.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 223904

                        November 4, 1992


ENT-1-09 CO:R:C:E 223904  TLS

CATEGORY: Entry

District Director
U.S. Customs Service
800 Front Street
San Diego, California  92188


RE: Request for comments concerning who has right to make entry;
19 U.S.C. 1484; 19 CFR 142.3; T.D. 90-42; HQ 223016; Customs
Directive 3530-02.


Dear Sir:

     The above-referenced request has been forwarded to this
office for consideration.  We have considered the points raised
by your office and our decision follows.

FACTS:

     The case involves a contract between a U.S. corporation
(hereafter "company") and a Mexican assembler (hereafter "shelter
operation" or "operation") on the U.S./Mexican border.  The
company imports merchandise assembled in a plant leased by the
shelter operation.  The contract calls for the following:

     1) The company is to assume legal responsibility for
     the payment of employees its provides to the shelter
     operation for assistance and training [clause 9];      
     2) The company will determine the number and types of
     employees needed to perform the various functions
     required [clause 9];                                   
     3) The employees retained by the operation will receive
     their benefits from the company exclusively [clauses 9
     and 7];                                                
     4) The company agrees to pay the operation for expenses
     incurred while meeting its obligations to the company,
     which are not to be limited to "costs of labor, rent,
     electrical services, purchase of materials, insurance
     and other operational and administrative expenses"
     [clause 7];                                            
     5) All parts and materials utilized by the operation
     for the benefit of the company will be delivered to the
     shelter operation by the company and will remain the
     property of the company [clause 2];                    
     6) The company is responsible for labor costs, as noted
     in 1), 3), and 4) above;                               
     7) The company provides on-site personnel, as noted in
     1) above;                                              
     8) The company will cover expenses incurred in the
     delivery, loading, and unloading of the product
     imported into the United States [clause 2].

The company's wholly-owned subsidiary is the contractor under the
contract.

ISSUE:

     Whether the company is a buying agent for the imported goods
and can make entry of the merchandise manufactured by the
contractor.

LAW AND ANALYSIS:

     Under 19 U.S.C. 1484 only an "importer of record" has the
right to make entry.  "Importer of record" is defined as the
owner or purchaser of the goods, or when designated by the owner,
purchaser, or consignee, a licensed customhouse broker.  A
nominal consignee may designate a customhouse broker to make
entry on its behalf but may not make entry on its own behalf.  If
a customhouse broker makes entry for a nominal consignee, the
broker must appear as importer of record.  The Act of January 12,
1983 (Pub. L. No. 97-446, 96 Stat. 2349) which repealed former
section 483 of the Tariff Act of 1930, as amended, and required
entries to be made by the owner, purchaser, or a duly appointed
customhouse broker is an example of a constriction of the right
to make entry.  It would be contrary to that congressional
purpose to interpret the term beyond the express language in 19
U.S.C. 1484 or Customs Directive 3530-02 of November 6, 1984.

     Customs Directive No. 3530-02, entitled "Right to Make
Entry" provides, in part:

     An "owner" or "purchaser" is defined 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 selling
     agent....

     Subsequently, entry issues relating to 807/9802 "shelter"
operations were specifically the subject of T.D. 90-42, which
held in part:

     U.S. shelter corporations have the right to make entry
     if they are the owner or purchaser of the finished
     articles, or if they are a licensed customhouse broker
     duly appointed by the owner, purchaser, or consignee of
     the merchandise.  A shelter corporation not licensed as
     a customhouse broker would be precluded from acting as
     importer of record, where it was engaged by the third-
     party U.S. client for the purpose of arranging the
     transportation and assembly of the articles in Mexico,
     and where it had no ownership interest in the finished
     goods.

     The company contends that it has sufficient ownership
interest in the subject transactions to make entry on the
merchandise.  It cites to HQ 223016 (June 27, 1991) to support
its claim that the company's involvement is within the parameters
set in HQ 223016.  In that case, the shelter operation had met
all of the eight criteria listed in the "FACTS" section above. 
The ruling found that "[a]lthough [the shelter operation] does
not fall squarely within the agency criteria, there are
sufficient factors present to fall within the general scope of a
buying agency....  Under Customs Directive 3530-02, the Customs
Service has held that buying agents meet the ownership criteria
of 19 U.S.C. 1484 so as to be eligible to enter their goods. 

     As noted with the listing of each of the criteria above, the
subject contract covers each of the criteria in one or more of
the contract clauses.  The contract's explicit language makes it
clear that the company is to maintain sufficient control over the
activities covered by the criteria.  Therefore, consistent with
the ruling of 223016, we find that the company in this case has
sufficiently shown that it would be considered to be a buying
agent on the transactions and under Customs Directive 3530-02 it
has a right to make entry.  It is fitting to note that as the
importer of record, the company it obligated to provide
information necessary for proper classification and appraisement
of the imported goods.  Under 19 U.S.C. 1508, importers of record
are required to maintain import records.

HOLDING:

     The company has shown through sufficient evidence that the
extent and terms of the financial interest it has in the subject
transaction qualifies it to make entry in this case.  As the
importer of record, it is obligated to provide information needed
for proper classification and appraisement.  It is appropriate to
request from the importer what provisions it has made to comply
with 19 U.S.C. 1509 so as to supply any information needed for a
proper appraisement and classification of the goods it enters.

                               Sincerely,




                               John Durant, Director