HQ 229504

September 4, 2002

LIQ-9-01 RR:CR:DR

229504 RDC

CATEGORY: Protest

U.S. Customs Service

111 W. Huron Street, Room 603

Buffalo, New York 14202

Att: Protest Review Officer, Arthur J. Lipp

RE: Application for Further Review of Protest number 0901-01-100473;
Allin Rae Bridal Accessories; 19 USC § 1520(c); 19 USC § 1514; bridal
gowns; NAFTA eligible; Tariff Preference Level Quota; TPL Certificates
Of Eligibility; T.D. 95-98

Dear Mr. Lipp:

On March 29, 2002, Protest number 0901-01-100473 was forwarded to this
office for further review. We have considered the evidence provided and
the points raised by your office and the Protestant. Our decision
follows.

FACTS:

The Protestant, Allin Rae Bridal Accessories ("Allin Rae") is the
importer of record for the protested entries. Allin Rae protests the
denial of its Petition for Reliquidation of approximately 175 entries.
According to the Protestant, the entries at issue consisted of bridal
gowns, the outer shell of which was from Japan and the support fabrics
(including the lining, crinoline and canvas) were from Canada and the
US. The bridal gowns were entered between March and December, 1998, with
a claim for preferential tariff treatment as originating goods under the
NAFTA (North American Free Trade Agreement).

The CF 7501 for protested entry numbers 110-xxxx483-1, 110-xxxx737-0,
110-xxxx440-1, 110-xxxx430-1 and 110-xxxx484-1 are included as evidence.
These entry summaries (CF 7501s) show the stated merchandise, namely
"shawls, etc.," or "dress, synthetic fiber" or "other headgear" and a
corresponding tariff number. In each case the designation "CA"
immediately precedes the tariff number in column 28. The tariff rate for
each of these line items is listed as "free." These entry summaries for
the example protested entries show that a claim for preferential tariff
treatment as originating goods under the NAFTA was made at the time of
entry for each of these entries per 19 CFR § 181.21, by including the
"symbol 'CA' for a good of Canada, as a prefix to the subheading of the
HTSUS under which each qualifying good is classified." The Port has also
supplied a copy of the CF 7501 for entry number 110-xxxx430-1 as
liquidated. The rate of duty for the "dress, synthetic fiber" apparel
has been changed from free to 16.6 percent.

Also provided are five copies of Certificates of Eligibility for the
NAFTA tariff rate issued by the Canadian Government. It is unclear how
the certificates are related to the entries. Certificate number 9034708
was issued March 30, 2000; Certificate number 9034713 was issued April
10, 2000; Certificate number 9034719 was issued April 10, 2000;
Certificate number 9034731 was issued April 10, 2000; and Certificate
number 9034746 was issued April 12, 2000.

Other documents are included in the file as evidence. A "Declaration of
Manufacturer / Producer, Exporter or Importer of Textiles and Textile
Products" executed by the President of Allin Rae certifies that the
merchandise imported with entry number 110-xxxx430-1 was subjected to
manufacturing or processing operations in, and / or incorporate
materials originating in USA, Japan, Canada, Taiwan and China. The goods
on the declaration are described as hats; artificial flowers and hair
ornaments; veils; and wedding gowns. This declaration appears to be
dated July 7, 1997. An invoice from Allin Rae as the seller / exporter
describes goods as: hair ornaments, hats, veils, gowns and states that
the country of origin is Canada. Also included are numerous poor
quality, thus barely legible copies of invoices from Allin Rae to,
apparently, retailers.

The Port has supplied a narrative of events and documents concerning
Allin Rae and its entries of wedding gowns which claimed preferential
tariff treatment as originating goods under the NAFTA upon entry. The
communications between the Port and the Protestant began in December,
1998, and involved numerous entries of wedding apparel claiming
preferential tariff treatment as originating goods under the NAFTA at
entry. Some of the entries which are the subject of these communications
are not included in the instant Protest but the goods and issues are
identical to those at issue here. The narrative supplied by the Port
states that the TPL certificates were received in December, 1999.

Since the TPL certificates were not issued until March and April, 2000
the import specialist was contacted to resolve the apparent discrepancy
between the time the certificates were received and the time that they
were issued. The import specialist stated that the December, 1999 date
was based on the Protestant\'s assertion rather than any independent
evidence possessed by Customs. The import specialist also stated that he
focused on the effective dates, the tariff description and the permit
numbers on the certificates rather than the issue date or date of
receipt. The import specialist also stated that there was nothing on the
certificates which would indicate to which entry it applied and that a
cross reference between the certificates and the entries had to be
provided to Customs by the importer\'s broker.

By letter dated December 10, 1998, the Port advised Allin Rae that,
regarding entry number 110-xxxx910-3 (not included in this Protest), it
did not have enough information to grant NAFTA origin. A copy of the
NAFTA Certificate of Origin and an explanation of how the imported
textiles qualified as NAFTA originating was requested and supplied. On
January 22, 1999, Allin Rae was sent a CF 29 advising it that the
wedding dresses entered did not qualify as NAFTA originating because the
fabric was imported from Japan. This entry was thus denied the
preferential tariff treatment under NAFTA claimed at entry and the duty
rate on these wedding gowns was advanced from free to 16.6 percent. In
February 1999 Allin Rae indicated to the Port that it was endeavoring to
obtain Certificates of Eligibility for tariff preference level (TPL)
quota from the Canadian government for the entries for which NAFTA
originating preferential tariff treatment was denied.

On June 17, 1999, by Notice of Action, Allin Rae was informed that the
subject protested entries, among others, were denied the NAFTA
originating preferential duty rate because the blanket Certificate of
Origin for 1998 could not be verified. In fact, the wedding dresses did
not qualify as originating under the NAFTA requirements -- some of the
fabric used was the product of Japan -- and therefore were not eligible
for a NAFTA Certificate of Origin. The Protestant states,

> as soon as it was determined that these gowns were NAFTA eligible, as
> opposed to NAFTA originating, Allin Rae contacted its broker, Starbor
> / Fritz, which agreed to obtain the necessary TPL Certificates of
> Eligibility from the Canadian government and submit them to Customs.

However, "through some clerical error or other inadvertence on the part
of the broker, the TPL Certificates were obtained, but were not
submitted to Customs prior to liquidation." On December 10, 1999, by
letter, the president of Allin Rae informed the Port that it was aware
some of the TPL certificates had been delivered to Customs and that
Allin Rae was working with its broker to obtain the remaining required
certificates. Also in that letter Allin Rae stated that it would submit
payment for the entries for which Customs had no certificates.

According to Customs automated data collection system (ACS) the
protested entries were extended once on January 26, 1999, and liquidated
on August 27, 1999, without the granting of the preferential tariff
treatment on the goods because the required TPL Certificates of
Eligibility were not filed with Customs. After liquidation "a second
clerical error or other inadvertence occurred on the part of the broker
in failing to file the TPL Certificates within 90 days of liquidation."
According to the Protestant the required Certificates were provided to
Customs in December, 1999.

On April 9, 2001, Customs received a Petition for Reliquidation per 19
USC § 1520(c)(1) from Allin Rae's counsel. The Protestant states that
this Petition was denied on August 10, 2001. On November 7, 2001, Allin
Rae filed this Protest number 0901-01-100473 which protests the denial
of its Petition for Reliquidation per 19 USC § 1520(c). The Protestant's
Petition for Reliquidation per 19 USC § 1520(c) requested the
re-liquidation of these entries - which were denied NAFTA preferential
tariff treatment - to correct the clerical error or other inadvertence
on the part of its broker in failing to submit the required TPL
Certificates.

ISSUE:

Does the broker's untimely filing of the Certificates of Eligibility for
Tariff Preference Level quota constitute a clerical error, mistake of
fact, or other inadvertence within the meaning of 19 USC §1520(c)?

LAW AND ANALYSIS:

We note initially that the issue protested, "the refusal to reliquidate
an entry under § 1520(c)" is protestable per 19 USC § 1514(a)(7).
Further, the instant Protest was timely filed, i.e., within 90 days of
the decision to deny the § 1520(c) Petition (19 USC § 1514(c)(3)). The
Protestant states that the subject § 1520(c) Petition was denied on
August 10, 2001, and this Protest was filed on November 7, 2001.
However, it appears that the Protestant's original Petition for
Reliquidation per 19 USC § 1520(c)(1) was untimely.

The subject entries liquidated on August 27, 1999, but the Petition was
not received by Customs until April 9, 2001. Section 1520(c)(1) requires
that the "error, mistake, or inadvertence \[be\] brought to the
attention of the Customs Service within one year after the date of
liquidation . . . ." Therefore, the Protestant had until August 27,
2000, to bring the error, mistake or inadvertence to the attention of
Customs per § 1520(c)(1). Allin Rae argues that

> as evidenced by the submission of the original TPL Certificates in
> connection with these entries in December 1999, as well as other
> communications with Customs, regarding the error on the part of the
> broker, within the one-year limitation

"this claim was properly brought to the attention of the appropriate
Customs officer within one year after the date of liquidation." However,
we are not convinced that the Protestant supplied the required
certificates in December, 1999. The five certificates included as
evidence were not issued by the Canadian government until March and
April 2000. These certificates could not have been submitted to US
Customs months before they were issued. Therefore, it is unclear when
the certificates were actually submitted.

Moreover, the Protestant is required to assert the existence of a
clerical error, mistake of fact or other inadvertence to Customs\"
within the proper time and with sufficient particularity to allow
remedial action\" ([ITT Corporation v. United States]{.underline}, 24
F.3d 1384, 1387 (Fed. Cir. 1994) quoting [Hambro Automotive Corp. v.
United States]{.underline}, 458 F. Supp. 1220, 1222 (Cust. Ct. 1978)).
Under [ITT]{.underline} then, in the Protestant's case, the broker's
filing of the TPL certificates -- whenever that occurred -- in no way
provided Customs notice that a "clerical error, mistake of fact, or
other inadvertence" had occurred during the entering of these goods. The
late filing of the TPL Certificates gave Customs notice that the TPL
Certificates were filed late -- nothing more. And in fact since the late
filing appears to be due to the Protestant's misapplication of the law
regarding NAFTA origin could have determined, correctly, that 19 USC §
1520(c)(1) did not apply.

Moreover, the Protestant never alleges that it asserted the existence of
a clerical error, mistake of fact or other inadvertence to Customs
within the proper time and with sufficient particularity to allow
remedial action. Allin Rae merely states that "other communications with
Customs" occurred. Such a statement does not constitute asserting the
existence of a "clerical error, mistake of fact, or other inadvertence"
with sufficient particularity to allow remedial action. See also HQ
226437 (March 24, 1997) (the Customs Service is without discretionary
authority to waive the 19 USC § 1520(c) statutory time requirement); and
HQ 224385 (May 24, 1993) (the petition filed under 19 USC § 1520(c)(1)
is untimely in this case because it was filed beyond one year from the
date of liquidation"). It is clear then, because Allin Rae did not bring
the asserted error or mistake or inadvertence to Customs' attention
within one year of liquidation that its Petition was untimely and thus
does not meet the statutory requirements. Customs is thus without
authority to reliquidate the disputed entries.

Notwithstanding that Customs lacks the authority to reliquidate the
disputed entries, it is the opinion of the Port that this Protest
warrants further review; we disagree that further review is warranted.
Under 19 USC § 1515, "\[u\]pon the request of the protesting party . . .
a protest may be subject to further review by another appropriate
customs officer, under the circumstances and in the form and manner that
may be prescribed . . . in regulations.\" 19 CFR § 174.24 provides for
further review of a protest when, inter alia, "the decision against
which the protest was filed" is included in this section. The Protestant
seeks further review per 19 CFR § 174.24(c) which provides for further
review when the decision against which the protest was filed,

> \(c\) Involves matters previously ruled upon by the Commissioner of
> Customs or his designee or by the Customs courts but facts are alleged
> or legal arguments presented which were not considered at the time of
> the original ruling;

(§ 174.24(c)). Thus in order to warrant further review per § 174.24(c) a
protestant must identify the matters previously ruled upon by the
Commissioner of Customs, his designee or the courts and further, explain
what facts or legal arguments the protestant contends were not presented
at the time of the decision. Allin Rae supplies neither the decisions
nor the new facts or legal arguments it contends were not considered
when such decisions were made. Therefore, the subject Application for
Further Review is fatally flawed and this Protest does not qualify for
further review per § 174.24(c).

In the alternative the Protestant seeks further review per 19 CFR §
174.24(d) which states,

> \(d\) Is alleged to involve questions which the Headquarters Office,
> United States Customs Service, refused to consider in the form of a
> request for internal advice pursuant to § 177.11(b)(5) of this chapter

(19 CFR § 174.24(d)). We have no evidence that an internal advice on
this issue was ever requested but denied as required by § 174.24(d).
Consequently, the criteria for further review as set out in 19 CFR §
174.24 have not been met by the subject Application. Since this Protest
does not warrant further review we will treat this application as a
request for internal advice per 19 CFR § 177.11.

The Protestant's entries were denied NAFTA preferential tariff treatment
because the required Certificates of Eligibility for the Tariff
Preference Level (TPL) were not submitted to Customs within the
requisite time. Certificates of Eligibility are used to monitor and
identify export shipments eligible for preferential tariff treatment
pursuant to the TPL provisions of Appendix 6.B. to Annex 300-B of the
NAFTA. A Certificate of Eligibility, signed by an authorized official of
the Canadian or Mexican government, is issued to the Canadian or Mexican
exporter for transmittal to the importer of the goods who then is able
to make a claim for preferential tariff treatment based on the
Certificate of Eligibility (T.D. 95-98).

Clarification of the relief available to importers who do not present
the Certificate of Eligibility at the time of entry is found in the
Discussion of Public Comments received in response to the interim
regulation set forth in T.D. 94-52.

> Three comments were received in response to the interim regulation set
> forth in T.D. 94-52. Two of these commenters were primarily concerned
> with the ability to file a claim after importation and whether or not
> there would be a sufficient time period to make such a claim,
> particularly when the U.S. importer is unable to obtain and provide a
> Certificate of Eligibility at the time of entry.
>
> While a failure to supply the required Certificate of Eligibility will
> preclude the filing of a claim for preferential tariff treatment and
> will result in liquidation of the entry at the non-preferential duty
> rate, Customs believes that importers in most cases will have adequate
> opportunity, following the date of entry, to submit the Certificate
> and make the claim when the Certificate is not available at the time
> of entry. Customs notes in this regard that the importer may supply
> the necessary documentation and make the claim either at any time
> prior to final liquidation or in connection with the filing of a
> protest within 90 days following final liquidation. Moreover, under
> existing procedures, liquidation is delayed for a minimum of 90 days
> following the date of entry. Thus, an importer has at least 180 days
> from the date of entry in which to file a claim through submission of
> the required Certificate of Eligibility. In addition, on a
> case-by-case basis, Customs may grant an importer\'s request for a
> delay in liquidation so as to afford the importer additional time to
> submit the Certificate and make the claim if the request explains the
> reason for the delay in providing the Certificate.

(T.D. 95-98). Further, in HQ 228897 (March 7, 2001) we held that an
importer had until liquidation to supply the Certificate of Eligibility,
and the opportunity to request delay of liquidation if necessary. Thus,
an importer whose entries are eligible for TPL treatment but does not
file the certificates at entry may 1) submit the certificates any time
before final liquidation; 2) file a protest within 90 days of
liquidation; 3) request extension of liquidation. The Protestant failed
to act on any of these options. Instead Allin Rae requests reliquidation
of the protested entries per 19 USC § 1520(c)(1).

The Protestant alleges that the TPL certificates were submitted to
Customs in December, 1999, but the protested entries were liquidated on
August 27, 1999. Thus, there appears to have been no mistake in the
liquidation. Customs liquidated the entries properly without TPL rates
of duty because it had no TPL certificates at that time. Allin Rae's
remedy then was to file a protest within 90 days of liquidation or
request extension of liquidation. The protestant's failure to avail
itself of the proper remedies in this situation is not correctable per
19 USC § 1520(c)(1). See [Occidental Oil & Gas Co. v. United
States]{.underline}, (13 C.I.T. 244; Ct. Intl. Trade (1989)).

Section 520(c) of the Tariff Act of 1930 as codified at 19 USC § 1520(c)
is an exception to the finality of §1514. Section 1520(c) states,

> \(c\) Reliquidation of entry or reconciliation: Notwithstanding a
> valid protest was not filed, the Customs Service may, in accordance
> with regulations prescribed by the Secretary, reliquidate an entry or
> reconciliation to correct - (1) a clerical error, mistake of fact, or
> other inadvertence, whether or not resulting from or contained in
> electronic transmission, 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, . . . .

Therefore, per § 1520(c)(1) Customs may reliquidate the protested
entries if the Protestant's failure to timely submit the TPL
certificates was due to a clerical error, mistake of fact, or other
inadvertence which does not amount to an error in the construction of a
law, is adverse to Allin Rae and manifest from the record or established
by documentary evidence (19 USC § 1520(c)(1)).

The Protestant states, "the broker's delay in filing the TPL
certificates with Customs, was the result of a clerical error and an
inadvertence." Further, Allin Rae claims "through some clerical error or
other inadvertence on the part of the broker, the TPL certificates were
obtained but were not submitted to Customs prior to liquidation." And
finally, the Protestant submits that, after liquidation "a second
clerical error or other inadvertence occurred on the part of the broker
in failing to file the TPL certificates within 90 days of liquidation."
The Protestant does not explain the nature of the clerical error or
inadvertence nor the facts or circumstances surrounding the error or
inadvertence.

First the Protestant does not even describe the clerical error or
inadvertence which caused its failure to file the TPL certificates.
Further, Allin Rae provides no documentary evidence whatsoever of the
clerical error or other inadvertence committed by its broker; nor is the
clerical error or other inadvertence "manifest from the record" as
required by the statute. In this regard, Allin Rae's assertions do not
meet the requirement of § 1520(c) that the error be "manifest from the
record or established by documentary evidence" (19 USC §1520(c)(1)) (see
also [Bar Bea Truck Leasing Co. Inc. v. U.S.]{.underline}, 5 CIT 124,
126 (Ct. Int'l Trade 1983)).

In [Executone Information Systems v. United States]{.underline}, in
which an importer failed to provide the required documentation to
Customs necessary to obtain duty free treatment for its goods (19 C.I.T.
960; 896 F. Supp. 1235 (Ct. Intl. Trade 1995)) the Court of
International Trade denied the importer relief and stated,

> in order to protect the viability of protests under 19 USC §1514 and
> whatever documentary requirements that exist in the statute and
> regulations, the court concludes that in the case of missing
> documentation required by statute or regulation, the importer must
> prove more than that it can produce documentation at the time of
> trial. At the very least, the importer must prove that, but for a
> mistake of fact or other inadvertence, proper documentation would have
> been filed at the time required by law

([id]{.underline}. at 1239). Clearly, Allin Rae has not done that which
the CIT called the very least: "prove that, but for a mistake of fact or
other inadvertence, proper documentation would have been filed at the
time required by law." Allin Rae was unable to supply the Certificate of
Eligibility before liquidation became final on August 27, 1999, because
its right to the preference does not appear to have existed until the
TPL certificates were issued in March and April 2000.

In [C.J. Tower & Sons of Buffalo, Inc. v. United States]{.underline},
(68 Cust. Ct. 17; 336 F. Supp. 1395; 1972 Cust. Ct.) the plaintiff
sought reliquidation of four entries under §1520(c) because duty was
paid on the imported articles though they were entitled to duty-free
entry as emergency war material. After the liquidations plaintiff
supplied the necessary certifications to demonstrate the goods were
entitled to duty free entry. The Customs Court permitted the
reliquidation of the entries. However, the situation in [C.J.
Tower]{.underline} is different than the one at issue here. In [C.J.
Tower]{.underline}, at the time of the entries the goods could have been
entered duty-free, that is, from the time of entry to the time the
certificate was presented to Customs, none of the circumstances
entitling the goods to duty free entry had changed. The importer had the
right to enter the merchandise duty-free at the time of entry. In
contrast, the wedding apparel at issue here could not have been entered
at the NAFTA TPL rate on the entry dates because Allin Rae had no right
to the TPL at the time of entry.

Moreover, the Protestant provides no evidence whatsoever to support its
claim of "some error or inadvertence." See also [Executone]{.underline},
supra, 96 F. 3d at 1388, in which the Court also found that relief under
section 1520(c)(1) was unavailable because \"Executone \[had not\]
sufficiently demonstrated, rather than merely alleged, 'a clerical
error, mistake of fact, or other inadvertence' as those terms are used
in section 1520(c)(1).\" Therefore, without evidence the Protestant's §
1520(c)(1) Petition must fail.

Additionally, it is evident that if any error was made by the Protestant
it as an error in the construction of a law. The protested entries were
entered between March and December, 1998, with a claim for preferential
tariff treatment as originating goods under the NAFTA. It is clear from
the Declaration of Manufacturer / Producer, Exporter or Importer of
Textiles and Textile Products" executed by the President of Allin Rae,
certifying that the merchandise imported was subjected to manufacturing
or processing operations in, and / or incorporate materials originating
in USA, Japan, Canada, Taiwan and China, that Allin Rae was aware of the
nature of the goods and still thought they were eligible for
preferential tariff treatment as originating goods under NAFTA. In fact,
the Protestant states that "as soon as it was determined that these
gowns were NAFTA eligible, as opposed to NAFTA originating" it began to
secure the TPL certificates. Therefore it is evident that the Protestant
misapplied the law regarding eligibility for originating goods under the
NAFTA and it was this error in the construction of the law that caused
the delay in supplying the TPL certificates. Such an error in the
construction of a law is not remedial by § 1520(c)(1).

Further, the wedding apparel at issue was entered between March and
December, 1998; these entries were not liquidated until August 27, 1999.
It is evident from the correspondence between the Port and the
Protestant that no error or inadvertence kept Allin Rae from submitting
the certificates during this time -- Allin Rae was endeavoring to obtain
the certificates from the Canadian government. As is evidence by Allin
Rae's president's letter dated December 10, 1999, the Protestant was
still trying to obtain some of the required TPL certificates at least
one year after the apparel was entered. Further, the TPL certificates
included as evidence were issued in March and April of 2000. Clearly,
the evidence supports the conclusion that no clerical error or
inadvertence prevented the Protestant either from filing the TPL
certificates at entry or submitting the certificates any time before
final liquidation or filing a protest within 90 days of liquidation or
requesting an extension of liquidation.

HOLDING:

The Petition for Reliquidation per 19 USC § 1520(c)(1) was not filed
within one year of liquidation therefore Customs has no authority under
19 USC § 1520(c)(1) to reliquidate the disputed entries; further review
per 19 CFR § 174.24 is not warranted; no evidence to support its
Petition for Reliquidation is present as required by § 1520(c)(1).
Therefore the Protest should be **DENIED IN FULL**.

In accordance with Section 3A (11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with this decision must be
accomplished prior to mailing the decision. Sixty days from the date of
the decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel, and to the public via
the Customs Home Page on the World Wide Web, the Freedom of Information
Act, and other public distribution channels.

Sincerely,

Myles Harmon, Acting Director

Commercial Rulings Division