3. Right To Make Entry

 

3. Right To Make Entry 

Entry By Importer 

Merchandise arriving in the United States by commercial carrier must be entered  by the owner, purchaser, his or her authorized regular employee, or by the licensed  customs broker designated by the owner, purchaser, or consignee. U.S. CBP officers and  employees are not authorized to act as agents for importers or forwarders of imported  merchandise, although they may give all reasonable advice and assistance to  inexperienced importers. 

Customs brokers are the only persons who are authorized by the tariff laws of the  United States to act as agents for importers in the transaction of their customs business.  Customs brokers are private individuals or firms licensed by CBP to prepare and file the  necessary customs entries, arrange for the payment of duties found due, take steps to  effect the release of the goods in CBP custody, and otherwise represent their principals in  customs matters. The fees charged for these services may vary according to the customs  broker and the extent of services performed. 

Every entry must be supported by one of the forms of evidence of the right to  make entry outlined in this chapter. When a customs broker makes entry, a CBP power of  attorney is made in the name of the customs broker. This power of attorney is given by  the person or firm for whom the customs broker is acting as agent. Ordinarily, the  authority of an employee to make entry for his or her employer is established most  satisfactorily by a CBP power of attorney. 

Entries Made By Others 

Entry of goods may be made by a nonresident individual or partnership, or by a  foreign corporation through a U.S. agent or representative of the exporter, a member of  the partnership, or an officer of the corporation. 

The surety on any CBP bond required from a nonresident individual or  organization must be incorporated in the United States. In addition, a foreign corporation  in whose name merchandise is entered must have a resident agent in the state where the  port of entry is located who is authorized to accept service of process on the foreign  corporation’s behalf.

A licensed customs broker named in a CBP power of attorney may make entry on  behalf of the exporter or his representative. The owner’s declaration made by a  nonresident individual or organization which the customs broker may request must be  supported by a surety bond providing for the payment of increased or additional duties  found due. Liability for duties is discussed in Chapter 13. An owner’s declaration  executed in a foreign country is acceptable, but it must be executed before a notary public  and bear the notary’s seal. Notaries public will be found in all American embassies  around the world and in most of the larger consulates. 

Power Of Attorney 

A nonresident individual, partnership, or foreign corporation may issue a power  of attorney to a regular employee, customs broker, partner, or corporation officer to act in  the United States for the nonresident employer. Any person named in a power of attorney  must be a resident of the United States who has been authorized to accept service of  process on behalf of the person or organization issuing the power of attorney. The power  of attorney to accept service of process becomes irrevocable with respect to customs  transactions duly undertaken. Either the applicable CBP form (see Appendix) or a  document using the same language as the form is acceptable. References to acts that the  issuer has not authorized the agent to perform may be deleted from the form or omitted  from the document. A power of attorney from a foreign corporation must be supported by  the following documents or their equivalent when foreign law or practice differs from  that in the United States: 

• A certificate from the proper public officer of the country showing the legal  existence of the corporation, unless the fact of incorporation is so generally  known as to be a matter of common knowledge. 

• A copy of that part of the charter or articles of incorporation which shows the  scope of the corporation’s business and its governing body. 

• A copy of the document or part thereof by which the person signing the power  of attorney derives his authority, such as a provision of the charter or articles  of incorporation, a copy of the resolution, minutes of the board of directors’  meeting, or other document by which the governing body conferred this  authority. In this case, a copy is required of the bylaws or other document  giving the governing board the authority to designate others to appoint agents  or attorney. 

A nonresident individual or partnership or a foreign corporation may issue a  power of attorney to authorize the persons or firms named in the power of attorney to  issue like powers of attorney to other qualified residents of the United States and to  empower the residents to whom such powers of attorney are issued to accept service of  process on behalf of the nonresident individual or organizations. 

A power of attorney issued by a partnership must be limited to a period not to exceed two years from the date of execution and shall state the names of all members  of the partnership. One member of a partnership may execute a power of attorney for the  transaction of customs business of the partnership. When a new firm is formed by a  change of membership, the prior firm’s power of attorney is no longer effective for any  customs purpose. The new firm will be required to issue a new power of attorney for the  transaction of its customs business. All other powers of attorney may be granted for an  unlimited period. 

CBP Form 5291, or a document using the same language as the form, is also used  to empower an agent other than an attorney-at-law or customs broker to file protests on  behalf of an importer under section 514 of the Tariff Act of 1930 as amended. (See 19  CFR 141.32.) 

Foreign corporations may comply with CBP regulations by executing a power of  attorney on the corporation’s letterhead. A form of power of attorney used for this  purpose is given below. A nonresident individual or partner may use this same form. 

The X Corporation, ______________________________________________________  (Address, city, and country) 

organized under the laws of _______________________________ hereby authorizes 

______________________________________________________________  (Name or names of employee or officer in United States) 

______________________________________________________________  (and address or addresses) 

to perform on behalf of the said corporation any and all acts specified in CBP Form 5291,  Power of Attorney; to accept service of process in the United States on behalf of the X  Corporation; to issue powers of attorney on CBP Form 5291 authorizing a qualified  resident or residents of the United States to perform on behalf of the X Corporation all  acts specified in CBP Form 5291; and to empower such resident or residents to accept  service of process in the United States on behalf of the said X Corporation. 

Because the laws regarding incorporation, notation, and authentication of  documents vary from country to country, the agent to be named in the power of attorney  should consult the port director of CBP at the port of entry where proof of the  document’s existence may be required as to the proper form to be used and the  formalities to be met. 

 

4. Examination Of Goods And Entry Documents

Examination of goods and documents is necessary to determine, among other  things: 

• The value of the goods for customs purposes and their dutiable status,  • Whether the goods must be marked with their country of origin or require  special marking or labeling. If so, whether they are marked in the manner  required, 

• Whether the shipment contains prohibited articles, 

• Whether the goods are correctly invoiced, 

• Whether the goods are in excess of the invoiced quantities or a shortage  exists, 

• Whether the shipment contains illegal narcotics. 

Prior to the goods’ release, the port director will designate representative  quantities for examination by CBP officers under conditions that will safeguard the  goods. Some kinds of goods must be examined to determine whether they meet special  requirements of the law. For example, food and beverages unfit for human consumption  would not meet the requirements of the Food and Drug Administration. 

One of the primary methods of smuggling narcotics into the United States is in  cargo shipments. Drug smugglers will place narcotics inside a legitimate cargo shipment  or container to be retrieved upon arrival in the United States. Because smugglers use any  means possible to hide narcotics, all aspects of the shipment are examined, including  container, pallets, boxes, and product. Only through intensive inspection can narcotics be  discovered. 

Textiles and textile products are considered trade-sensitive and as such may be  subject to a higher percentage of examinations than other commodities. 

CBP officers will ascertain the quantity of goods imported, making allowances  for shortages under specified conditions and assessing duty on any excess. The invoice  may state the quantities in the weights and measures of the country from which the goods  are shipped or in the weights and measures of the United States, but the entry must state  the quantities in metric terms. 

Excess Goods And Shortages 

In order to facilitate duty allowances for goods that do not arrive and to determine  whether excess goods are contained in the shipment, the importer (or foreign exporter) is  advised to pack the goods in an orderly fashion; properly mark and number the packages  in which the goods are contained; list each package's contents on the invoice; and place  marks and numbers on the invoices that correspond to those packages.

If the CBP officer finds any package that contains an article not specified on  the invoice, and there is reason to believe the article was omitted from the invoice by  fraud, gross negligence, negligence on the part of the seller, shipper, owner, or agent, a  monetary penalty may be imposed, or in some cases, the merchandise may be seized or  forfeited. (See e.g., 19 U.S.C. 1592.) 

If, during the examination of any package that has been designated for  examination, the CBP officer finds a deficiency in quantity, weight or measure, he or she  will make a duty allowance for the deficiency. An allowance in duty may be made for  those packages not designated as long as the importer notifies the port director of the  shortage before liquidation of the entry becomes final and establishes to the port  director's satisfaction that the missing goods were not delivered. 

Damage Or Deterioration 

Goods that the CBP officer finds to be entirely without commercial value at the  time of arrival in the United States because of damage or deterioration are treated as a  “nonimportation.” No duties are assessed on these goods. When damage or deterioration  is present with respect to part of the shipment only, allowance in duties is not made  unless the importer segregates, under CBP supervision, the damaged or deteriorated part  from the remainder of the shipment. When the shipment consists of fruits, vegetables, or  other perishable merchandise, allowance in duties cannot be made unless the importer,  within 96 hours of unloading the merchandise and before it has been removed from the  pier, files an application for an allowance with the port director. Allowance or reduction  of duty for partial damage or loss as a result of rust or discoloration is precluded by law  on shipments consisting of any article partially or wholly manufactured of iron or steel,  or any manufacture of iron or steel. 

Tare 

In determining the quantity of goods dutiable on net weight, a deduction is made  from the gross weight for just and reasonable tare. Tare is the allowance for a deficiency  in the weight or quantity of the merchandise caused by the weight of the box, cask, bag,  or other receptacle that contains the merchandise and that is weighed with it. The  following schedule tares are provided for in the CBP Regulations: 

Apple boxes. 3.6 kilograms (8 lb.) per box. This schedule tare includes the paper  wrappers, if any, on the apples. 

China clay in so-called half-ton casks. 32.6 kilograms (72 lb.) per cask. 

Figs in skeleton cases. Actual tare for outer containers plus 13 percent of the  gross weight of the inside wooden boxes and figs. 

Fresh tomatoes. 113 grams (4 oz.) per 100 paper wrappings.

Lemons and oranges. 283 grams (10 oz.) per box and 142 grams (5 oz.) per  half-box for paper wrappings, and actual tare for outer containers. 

Ocher, dry, in casks. Eight percent of the gross weight; in oil in casks, 12  percent of the gross weight. 

Pimentos in tins, imported from Spain. 

Size can Drained weights 

3 kilos 13.6 kilograms (30 lb.)—case of 6 tins  794 grams (28 oz.) 16.7 kilograms (36.7 lb.)—case of 24 tins  425 grams (15 oz.) 8.0 kilograms (17.72 lb.)—case of 24 tins  198 grams (7 oz.) 3.9 kilograms (8.62 lb.)—case of 24 tins  113 grams (4 oz.) 2.4 kilograms (5.33 lb.)—case of 24 tins 

Tobacco, leaf not stemmed. 59 kilograms (13 lb.) per bale; Sumatra: actual tare  for outside coverings, plus 1.9 kilograms (4 lb.) for the inside matting and, if a  certificate is attached to the invoice certifying that the bales contain paper  wrappings and specifying whether light or heavy paper has been used, either 113  grams (4 oz.) or 227 grams (8 oz.) for the paper wrapping according to the  thickness of paper used. 

For other goods dutiable on the net weight, an actual tare will be determined. An  accurate tare stated on the invoice is acceptable for CBP purposes in certain  circumstances. 

If the importer of record files a timely application with the port director of CBP,  an allowance may be made in any case for excessive moisture and impurities not usually  found in or upon the particular kind of goods. 

5. Packing Of Goods—Commingling 

Packing 

Information on how to pack goods for the purpose of transporting them may be  obtained from shipping manuals, carriers, forwarding agents, and other sources. This  chapter, therefore, deals with packing goods being exported in a way that will permit  CBP officers to examine, weigh, measure, and release them promptly. 

Orderly packing and proper invoicing go hand in hand. You will speed up the  clearance of your goods through CBP if you: 

• Invoice your goods in a systematic manner, 

• Show the exact quantity of each item of goods in each box, bale, case, or  other package,

• Put marks and numbers on each package, 

• Show those marks or numbers on your invoice opposite the itemization of  goods contained in the package that bears those marks and numbers. 

When packages contain goods of one kind only, or when the goods are imported  in packages the contents and values of which are uniform, the designation of packages for  examination and the examination for CBP purposes are greatly facilitated. If the contents  and values differ from package to package, the possibility of delay and confusion is  increased. Sometimes, because of the kinds of goods or because of the unsystematic  manner in which they are packed, the entire shipment must be examined. 

Pack and invoice your goods in a manner which makes a speedy examination  possible. Always bear in mind that it may not be possible to ascertain the contents of  your packages without full examination unless your invoice clearly shows the marks and  numbers on each package (whether box, case, or bale) and specifies the exact quantity of  each item of adequately described goods in each marked and numbered package. 

Also, be aware that CBP examines cargo for narcotics that may, unbeknownst to  the shipper or the importer, be hidden inside. This can be time-consuming and expensive  for both the importer and for CBP. Narcotics inspections may require completely  stripping a container in order to physically examine a large portion of the cargo. This  labor-intensive handling of cargo, whether by CBP, labor organizations, or private  individuals, results in added costs, increased delays, and possible damage to the product.  Importers can expedite this inspection process by working with CBP to develop packing  standards that will permit effective CBP examinations with a minimum of delay, damage,  and cost. 

A critical aspect in facilitating inspections is how the cargo is loaded.  “Palletizing” cargo—loading it onto pallets or other consolidated units—is an effective  way to expedite such examinations. Palletization allows for quick cargo removal in  minutes using a forklift compared to the hours it would take manually. Another example  is leaving enough space at the top of a container and an aisle down the center to allow  access by a narcotic-detector dog. 

Your cooperation in this respect will help CBP officers decide which packages  must be opened and examined; how much weighing, counting, or measuring must be  done, and whether the goods are properly marked. It will simplify the ascertainment of  tare and reduce the number of samples to be taken for laboratory analysis or for other  customs purposes. It will facilitate verification of the packages and contents, as well as  the reporting by CBP officers of missing or excess goods. And it will minimize the  possibility that the importer may be asked to resubmit for examination packages that  were already released under the belief that the ones originally designated for examination  were sufficient for that purpose.

Packing a combination of different types of goods makes it impracticable for  CBP officers to determine the quantity of each type of product in an importation. Such  packing can also lead to a variety of other complications in the entry process. No problem  will arise, however, from the orderly packing of several different kinds of properly  invoiced goods in a single package. It is indiscriminate packing that causes difficulty. 

Commingling 

Except as mentioned hereafter, whenever articles subject to different rates of duty  are so packed together or combined such that CBP officers cannot readily determine the  quantity or value of each class of articles without physically separating the shipment or  the contents of any package, the combined articles will be subject to the highest rate of  duty applicable to any part of the commingled lot, unless the consignee or his agent  separates the merchandise under CBP supervision. 

The three methods of ready ascertainment specified by General Note 3(f) of the  Harmonized Tariff Schedule are: 

(1) Sampling, 

(2) Verification of packing lists or other documents filed at the time of entry,  or 

(3) Evidence showing performance of commercial settlements tests generally  accepted in the trade and filed in the time and manner as prescribed in the  CBP Regulations. 

Segregation of merchandise is at the risk and expense of the consignee. It must be  done within 30 days (unless a longer time is granted) after the date of personal delivery  or the date of mailing a notice to the consignee by the port director that the goods are  commingled. The compensation and expenses of the CBP officers supervising the  segregation must be borne by the consignee. 

Assessing duty on the commingled lot at the highest applicable rate does not  apply to any part of a shipment if the consignee or his agent furnishes satisfactory proof  that: 

1. Such part is commercially negligible, is not capable of segregation  without excessive cost, and will not be segregated prior to its use in a  manufacturing process or otherwise; and 

2. The commingling was not intended to avoid the payment of lawful  duties. 

Any article for which such proof is furnished shall be considered for all CBP  purposes as a part of the article, subject to the next lower rate of duty, with which it is  commingled.

In addition, the highest-rate rule does not apply to any part of a shipment if  satisfactory proof is furnished that: 

1. The value of the commingled articles is less than the aggregate value  would be if the shipment were segregated; 

2. The shipment is not capable of segregation without excessive cost and  will not be segregated prior to its use in a manufacturing process or  otherwise; and 

3. The commingling was not intended to avoid the payment of lawful  duties. 

Any merchandise for which such proof is furnished shall be considered for all  CBP purposes to be dutiable at the rate applicable to the material present in greater  quantity than any other material. 

The above rules do not apply if the tariff schedules provide a particular tariff  treatment for commingled articles.