HQ 220005: Internal Advice (unnumbered), concerning Protest No. 1001-7- 007538, protesting the decision in the liquidation on July 11, 1986, of Entry No. 86-871609-9, dated May 27, 1986, covering a shipment containing, inter alia, ladies ornamented swimwear made in Israel.

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 220005

                                   March 14, 1988


          CO:R:C:E  220005 KP

          CATEGORY:  Entry/Liquidation

          Regional Commissioner of Customs
          New York Region
          6 World Trade Center
          New York, New York  10048-0945

          RE:  Internal Advice (unnumbered), concerning Protest No. 1001-7-
          007538, protesting the decision in the liquidation on July 11,
          1986, of Entry No. 86-871609-9, dated May 27, 1986, covering a
          shipment containing, inter alia, ladies ornamented swimwear made
          in Israel.

          Dear Sir:

               With your memorandum of December 18, 1987 (your reference
          PRO-4:O:C:R LR), you requested our advice regarding whether, in
          the context of the above-referenced protest, an entry may be
          reliquidated pursuant to section 520(c)(1), Tariff Act of 1930,
          as amended (19 U.S.C. 1520(c)(1)), on the basis of a Presidential
          proclamation.  Our decision follows:

          FACTS:

               Presidential Proclamation 5365 of August 30, 1985, imple-
          mented reductions in United States rates of duty pursuant to the
          United States-Israel Free Trade Area Agreement (FTA Agreement) by
          modifying the Tariff Schedules of the United States (TSUS).  One
          change made by the proclamation was the insertion of items 384.19
          and 384.20, TSUS, to supersede item 383.19, TSUS, with respect to
          articles entered on or after September 1, 1985.  Duty rates under
          item 384.19, TSUS, for products of Israel were set at 30% ad
          valorem for articles entered on or after September 1, 1985, but
          before January 1, 1987, 12% ad valorem for articles entered on
          or after January 1, 1987, but before January 1, 1989, and free
          for articles entered on or after January 1, 1989.  Among the
          articles provided for in item 384.19 were ornamented, knit,
          swimming suits and other swimwear of man-made fibers, for women,
          girls, or infants.

               On May 27, 1986, the protestant entered at JFK Airport a
          shipment containing ladies ornamented swimwear from Israel.  Duty
          on the swimwear was assessed at 30% ad valorem under item 384.19,
          TSUS.  On July 11, 1986, the entry covering the swimwear was













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          liquidated with no change in duty on the swimwear.  No protest
          was filed within the next 90 days against that liquidation
          decision; accordingly, the liquidation became final on October 9,
          1986, pursuant to section 514(a), Tariff Act of 1930, as amended
          (19 U.S.C. 1514(a)).

               On May 4, 1987, the President issued Presidential Proclama-
          tion 5646 to, among other things, modify the tariff treatment
          being extended to products of Israel under the TSUS pursuant to
          the FTA Agreement.  One change effected by this proclamation was
          the addition of a new provision for ornamented, knit, swimming
          suits and other swimwear of man-made fibers, for women, girls, or
          infants, under item 384.17, TSUS, and the deletion of the corre-
          sponding provision for that merchandise in item 384.19, TSUS.
          This change was necessary "due to an inadvertence of both parties
          to the Israel Agreement" which caused the contemplated duty
          reduction on the swimwear to be improperly implemented.  Presi-
          dential Proclamation 5646, 52 Fed. Reg. 16,805, 16,806 (1987).  A
          free rate of duty was established for products of Israel entered
          under item 384.17, TSUS, and this rate was proclaimed to be
          effective with respect to articles entered, or withdrawn from
          warehouse for consumption, on or after September 1, 1985.

               On May 26, 1987, the protestant, claiming that his imported
          swimwear was entitled to and would have been given duty-free
          treatment under the FTA Agreement but for the inadvertence noted
          in Presidential Proclamation 5646, filed the subject protest,
          requesting reliquidation of duties on the merchandise under item
          384.17, TSUS, pursuant to section 520(c)(1), Tariff Act of 1930,
          as amended (19 U.S.C. 1520(c)(1)).

          ISSUE:

               Whether an inadvertence resulting in the improper implemen-
          tation of a trade agreement in the TSUS warrants under 19 U.S.C.
          1520(c)(1) the reliquidation of an entry which was liquidated in
          accordance with the improperly implemented tariff provisions and
          for which liquidation has become final.

          LAW AND ANALYSIS:

               Title 19, United States Code, section 1520(c)(1) provides:

                  Notwithstanding a valid protest was not filed, the
               appropriate customs officer may, in accordance with
               regulations prescribed by the Secretary, reliquidate an
               entry to correct --

                        (1)  a clerical error, mistake of fact,
                    or other inadvertence not amounting to an
                    error in the construction of a law, adverse










                                         -3-


                    to the importer and manifest from the record
                    or established by documentary evidence, in
                    any entry, liquidation, or other customs
                    transaction, when the error, mistake, or
                    inadvertence is brought to the attention of
                    the appropriate customs officer within one
                    year after the date of liquidation or
                    exaction;

               The protestant filed his claim on May 26, 1987, some ten and
          one-half months after the entry was liquidated on July 11, 1986.
          Accordingly, the claim was timely filed under 19 U.S.C. 1520(c)
          (1).  We find that the claim also was adequately brought to the
          attention of the Customs Service for purposes of 19 U.S.C. 1520
          (c)(1), notwithstanding that it was filed on Customs Form 19,
          which is the form used to file protests under 19 U.S.C. 1514.
          Therefore, the procedural requirements of the statute have been
          satisfied.

               As far as the merits of the claim are concerned, we encoun-
          tered an issue similar to the one presented here in Customs
          Ruling CLA-2 CO:R:CV:G 073482 JCH (Mar. 2, 1984).  In that case,
          an entry of pickles from Poland was liquidated at the column 2
          rates of duty in the TSUS pursuant to Presidential Proclamation
          4991, which imposed column 2 rates of duty on Polish products
          exported to the United States on or after November 1, 1982.  The
          entry of pickles was liquidated on January 3, 1983.  Several
          months later, Presidential Proclamation 5048 amended the earlier
          proclamation by excepting from the column 2 duty rates articles
          ordered under a contract executed on or before "October 9, 1982,
          [sic]" and for which certain other conditions were met.  All of
          the requirements to except the pickles from the column 2 duty
          rates under Presidential Proclamation 5048 were satisfied, so the
          importer filed a protest requesting reliquidation of the entry of
          pickles on July 25, 1983.

               We determined in Customs Ruling 073482 that the importer's
          protest could not be approved under section 514, Tariff Act of
          1930, as amended (19 U.S.C. 1514), because an exception to the
          finality of liquidations resulting from the operation of that
          provision can only be made by legislation.  We then considered
          whether the protest could be regarded as an informal valid claim
          under 19 U.S.C. 1520(c)(1) on the premise that failure to apply
          the column 1 rates of duty to the subject merchandise was the
          result of "a clerical error, mistake of fact, or other inadver-
          tence not amounting to an error in the construction of the law"
          as contemplated by that section.  However, comparing the situa-
          tion to United States v. Miles, 57 CCPA 1, C.A.D. 967, 416 F.2d
          973 (1969), we concluded that relief was unavailable under 19
          U.S.C. 1520(c)(1) inasmuch as there was no error at the time
          liquidation was made on the entry.










                                         -4-


               The same analysis may be applied to this section 520(c)(1)
          claim.  The protestant would have us reliquidate its entry based
          on a subsequent change in the law which was necessitated by an
          inadvertence of both parties to the FTA Agreement.  That, how-
          ever, is not the kind of inadvertence for which relief has been
          provided under 19 U.S.C. 1520(c)(1) because it did not cause an
          improper liquidation.  According to existing law at the time that
          duties were liquidated on the protestant's merchandise, swimwear
          of the type in question was dutiable at 30% ad valorem under item
          384.19, TSUS.  That was the rate of duty and the tariff classi-
          fication selected for the protestant's merchandise.  Thus, the
          entry was properly liquidated under existing law; there is
          nothing to correct pursuant to 19 U.S.C. 1520(c)(1).

          HOLDING:

               An inadvertence resulting in the improper implementation of
          a trade agreement in the TSUS does not warrant under 19 U.S.C.
          1520(c)(1) the reliquidation of an entry which was liquidated
          in accordance with the improperly implemented tariff provisions
          and for which liquidation has become final.  Consequently, you
          should deny the protestant's claim for relief under 19 U.S.C.
          1520(c)(1).

                                          Sincerely,




                                          William G. Rosoff
                                          Chief
                                          Entry Rulings Branch