HQ 223598: Protest 1501-91-100054; 19 U.S.C. 1520(c)(1); clerical error;19 CFR 177.1(b); 19 U.S.C. 1313(j)(1); 19 CFR 191.141(b)(1); 19CFR 191.141(b)(2)(i); 19 CFR 191.141 (b)(2)(ii); C.S.D. 85-35;C.S.D. 86-25; C.S.D. 90-34.

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 223598

                        February 24, 1994

DRA-4-CO:R:C:E 223598 AJS

CATEGORY: Drawback

Regional Director
Commercial Operations 
Southeast Region 
U.S. Customs Service
909 S.E. 1st Avenue
Miami, Florida  33131

RE: Protest 1501-91-100054; 19 U.S.C. 1520(c)(1); clerical error;
19 CFR 177.1(b); 19 U.S.C. 1313(j)(1); 19 CFR 191.141(b)(1); 19
CFR 191.141(b)(2)(i); 19 CFR 191.141 (b)(2)(ii); C.S.D. 85-35;
C.S.D. 86-25; C.S.D. 90-34.

Dear District Director:

     This is our decision in protest 1501-91-100054, dated
September 4, 1991, concerning the denial of certain drawback
entries.

FACTS:

     This protest deals with 44 pallets of polypropylene film. 
The protestant's broker intended to file four same condition
drawback (SCD) entries concerning this merchandise.  Due to a
delay in the delivery of the mail from one of the broker's
offices in a different port, the entries could not be filed at
least five working days prior to the date of intended exportation
of the merchandise.  It is claimed that the broker contacted
Customs, and was informed that these SCD entries would not be
approved because of the untimely filing problem.  The broker thus
decided to not file the entries.  The departure of the vessel was
subsequently delayed so that more than five days passed from the
time the broker could have initially filed the SCD entries.  The
broker then filed the entries with Customs, but not within 5 days
prior to the date of intended exportation.  

     Customs was not given an opportunity to examine the
merchandise prior to departure in order to determine if it was in
the same condition as at the time of importation.  The protestant
 did not initially provide sufficient evidence to support its
claim that the subject film was, in fact, in the same condition
at the time of export.  However, the protestant submitted
additional information regarding the same condition of the film. 
For example, an entry summary with an import date of 8/13/90
indicates that 2,662 rolls of polypropylene film were imported. 
Invoice number J5C-15049 of 7/27/90, listed under importer order
number 80722 and under manufacturer number 860211, contains the
same amount of film.  A packing list from the importer indicates
that order 80722 was sent to the exporter on 11/12/90.  A hand
written note from the exporter's warehouse is claimed to
establish that order 80722 was sent in one of two containers to
Charleston for export.  A facsimile message sent by the importer
to the exporter on 12/28/90 is claimed to support the assertion
that order 80722 is related to order 860211 and that this order
was shipped for export.  A shipping/packing list from the
exporter of 1/23/91 indicates that 44 pallets of film were
shipped to Charleston for export to Honk Kong.  It is claimed
that 19 pallets of the 2,662 rolls from the original import entry
were included within these 44 pallets.  A bill of lading of
1/25/91 lists the exporter as the shipper, Charleston as the port
of loading, Hong Kong as the port of discharge, and 44 pallets of
film as the description of the goods.  Documentation for the
other three entries, including the one not liquidated, provide
similar information.  In addition, the documentation indicates
that  more pallets of film were imported than exported.  

     A Certificate of Quality issued by the manufacturer was
forwarded to the foreign importer for the same type of film
specified on the shipper/packing list.  This certificate was
issued before the film was imported into the United States. 
Counsel stated that this type of film will not deteriorate, so
the certificate remained acceptable as to the quality of the film
at this later date.  Counsel also stated that the lesser value of
the film upon exportation was due to technological changes
regarding its use in the United States, and that the film could
still be used in other machinery.  

ISSUE:

     Whether the failure of the protestant to timely file the
Customs Form 7539 was a clerical error. 

     Whether the additional information submitted with the
protest reasonably establishes that the merchandise qualifies for
treatment under 19 U.S.C. 1313(j)(1).

 LAW AND ANALYSIS:

     Initially, we note that the protest has been timely filed
pursuant to 19 U.S.C. 1514(c)(2)(B).  The subject drawback
entries were liquidated on 6/7/91, and the protest was filed on
9/4/91.  The refusal to pay a claim for drawback is protestable
under section 1514(a)(6).  An additional drawback entry which was
included as part of the 44 exported pallets has not been
liquidated and was not included as part of this protest.  

     19 U.S.C. 1520(c)(1) allows Customs to reliquidate an entry
to correct a clerical error or other inadvertence not amounting
to an error in the construction of a law when certain conditions
are met.  These conditions are that the clerical error or other
inadvertence must be adverse to the importer, manifest from the
record or established by documentary evidence, and brought to the
attention of Customs within one year after the date of
liquidation of the entry.

     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."  See PPG Industries, Inc. v.
United States, 7 CIT 118, 124 (1984), and cases cited therein.;
see also, Treasury Decision (T.D.) 54848, wherein an example of a
clerical error is given as: "[a person] meant to write 'par. 231'
but wrote 'par. 131'").  In Ruth F. Sturm's Customs Law &
Administration (3rd edition), it is stated that "[clerical error
has been found where mistakes were made in copying of typing
figures or where figures have been transposed", and a number of
Customs Court decisions are cited for this proposition (section
9.4, at pages 5 and 6).

     The protestant claims that the broker's failure to timely
file the drawback entries was a clerical error, and that this
error was based solely on the claimed verbal advice of Customs. 
Oral opinions or advice of Customs Service personnel are not
binding on the Customs Service.  19 CFR 177.1(b). Therefore,
any reliance by the broker on verbal advice is not binding in
this instance.  Furthermore, the broker's failure to file their
drawback claims was also not a clerical error.  Their failure to
file certainly did not involve a mistake by a subordinate upon
whom devolves no duty to exercise judgement.  The broker simply
decided that there was no reason in attempting to file the
entries because they could not be timely filed.  Therefore, the
broker's decision to not file the entries when it initially
received them was a result of the exercise of its own judgement. 
Accordingly, the broker's failure to file the subject entries was
not a clerical error within the meaning of 19 U.S.C. 1520(c)(1).
 
     19 U.S.C. 1313(j)(1) provides that "[i]f imported
merchandise, on which was paid any duty, tax, or fee imposed
under Federal law because of its importation-

     (A) is, before the close of the three-year period beginning
on the date of importation-

          (i)  exported in the same condition as when            
          imported, or
          (ii) destroyed under Customs Supervision; and

     (B) is not used within the United States before such
exportation or destruction;

then upon such exportation or destruction 99 per centum of the
amount of each such duty, tax and fee so paid shall be refunded
as drawback.

     19 CFR 191.141(b)(1) provides that an exporter-claimant who
desires to export merchandise with drawback under 19 U.S.C.
1313(j) shall file with the appropriate Customs officer a
completed Customs Form (CF) 7539.  It shall certify that the
merchandise is in the same condition as when imported and not
used within the United States before such exportation.

     19 CFR 191.141(b)(2)(i) states that the completed CF 7539
shall be filed with the appropriate Customs officer at least 5
working days prior to the date of intended exportation of the
merchandise, unless the Customs officer approves a shorter
period (emphasis added).  As stated beforehand, the CF 7539 was
not filed within the required time frame and Customs was not
given an opportunity to examine the merchandise.  Therefore, the
broker has clearly not followed the proper procedures for SCD
exportations.  In C.S.D. 86-25, we stated that "[t]he failure to
file the required notice of intent to export deprived the
Government of the ability to verify the identity of the
merchandise with that of the imported merchandise, and the
condition of the merchandise that is to be exported."  In
addition, we ruled that the failure to file notice of intent to
export is a basis on which to deny drawback.  See also C.S.D.
90-34.  

     The broker argues that it could have timely filed the CF
7539 because the actual departure date of the vessel was delayed. 
Section 191.141 specifically provides that the CF 7539 shall be
filed at least five days prior to the date of intended
exportation and not the actual date of exportation.  As stated  previously, the broker was unablee          eee to file the CF7539 within at least five days
before the intended exportation of the merchandise.  Accordingly,
the broker's argument regarding actual departure is immaterial
inasmuch as it could not file within the required time period.

     The protestant requests that we grant a Waiver of Prior
Notice of Intent to Export.  The authority to grant such  
waivers is found in 19 CFR 191.141(b)(2)(ii).  This provision
states that "[t]he appropriate Customs officer may waive prior
notice [of intent to export] at any time for any exporter-
claimant."  In C.S.D. 85-35, we stated that "inasmuch as the
appropriate Customs officer, by virtue of 191.141(b)(2)(ii), can
waive the prior notice 'at any time', this language is broad
enough to allow the officer to waive the requirement in cases
where the merchandise has already been exported.  The burden on
the claimant of proving same condition in these cases is
naturally greater, as such proof of same condition must be based
on secondary evidence."  Therefore, Customs may grant a
retroactive waiver of prior notice of intent to export if the
protestant provides sufficient information regarding the same
condition of the film. 

     The protestant submitted additional information to this
office regarding the condition of the subject film.  This
information indicates that film was imported, a portion of this
film was shipped to the exporter, that this film was exported,
and at the time of exportation the film was of the same quality
as at the time of importation.  The film also does not appear to
have been used during this time, otherwise, it could not be
exported for further use by another party.  Based on the above
information, the protestant has satisfied their burden concerning
the same condition of the film upon exportation.  Consequently,
the granting of a retroactive waiver of prior notice of intent to
export is proper in this case.  

HOLDING:

     The protest is granted.  The failure to timely file the CF
7539 is not a clerical error subject to correction pursuant to 19
U.S.C. 1520(c))(1).  However, the granting of a retroactive
waiver of prior notice of intent to export is proper under
circumstances in which the protestant submits evidence to
establish that the merchandise was exported in the same condition
as imported.                                                     
                                
     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,  


                               -6-

with the CF 19, 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 of the decision.  Sixty days from the date of the
decision 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, Lexis, Freedom of Information Act and other
public access channels.                                          
                  

                                 Sincerely,


                                 John Durant, Director
                                 Commercial Rulings Division