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HQ 230408




October 20, 2004

LIQ-9-01 RR:CR:DR 230408 MK

Port Director
Port of Houston
U.S. Bureau of Customs and Border Protection 2350 N. Sam Houston Pkwy E. #1000
Houston, TX 77032-3100

RE: Protest 5301-01-100344; Methanex Methanol Co.; 19 U.S.C. 1520(c)(1); Generalized System of Preferences.

Dear Port Director:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided and the arguments made by the Protestant, as well as Customs and Border Protection’s records relating to this matter. Our decision follows.

FACTS:

On June 30, 1999, the Generalized System of Preferences (“GSP”), a preferential trade program that allows the eligible products of designated developing countries to directly entry the United States free of duty, expired.

On December 17, 1999, the Ticket to Work and Work Incentives Improvement Act of 1999 was passed. Pub. L. 106-170, 5 Stat. 508. Section 508 of title five extended the duty-free treatment under the GSP. It states that “The amendment made by this section applies to articles entered on or after the date of the enactment of this Act.”

The file contains two undated Customs Form (“CF”) 7501, entry summaries for entry numbers 255-1 and 249-4. Methanex Methanol Company of Dallas, Texas is listed as the importer of record, Methanol is stated as the entered merchandise, the Harmonized Tariff Schedule United States (“HTSUS”) subheading number for these entries is A2905.11.2000, and 11.8% ad valorem duties were deposited. The “A” before the classification number is the Special Program Indicator (SPI) for the General System of Preferences. The CF 7501 does not indicate that it was entered ABI, and the SPI was not entered into the Bureau of Customs and Border Protection (“CBP”) Automated Commercial System (“ACS”).

The ACS records indicate that the date of entry for both entry numbers is December 20, 1999. The entries liquidated as entered, without preferential treatment under GSP, on November 3, 2000.

On May 22, 2001, two 19 U.S.C. 1520(c)(1) petitions were filed, numbers 5301-01-200042 and 5301-01-200040. On August 22, 2001, these petitions were denied. On November 9, 2001, Methanex filed the instant protest, number 5301-01-100344, protesting these denials.

ISSUE:

Whether liquidating the entries without preferential treatment under the Generalized System of Preferences was a mistake correctable under 19 U.S.C. §1520(c)(1)?

LAW & ANALYSIS:

Initially, we note that the subject protest against the denial of the 1520(c)(1) petitions was timely filed pursuant to 19 U.S.C. 1514(c)(3)(B). The petitions were filed on May 22, 2001, under 19 U.S.C. 1520(c)(1), to request the reliquidation of the subject entry. They were denied on August 22, 2001, and the protest against this denial was filed on November 9, 2001, within 90 days from August 22, 2001 denial, as prescribed under 19 U.S.C. 1514(c)(3)(B).

The relevant statute, 19 U.S.C. 1520(c)(1), provides:

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 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, when the error, mistake, or inadvertence is brought to the attention of the Customs Service within one year after the date of liquidation ”

The requirement under this statute in dispute is whether there was a clerical error, mistake of fact or inadvertence by the port in liquidating the subject entries without preferential treatment under the GSP. The protestant asserts that the SPI “A” was included on the entry documents and liquidation with preferential treatment should have been automatic. The port asserts that because the entries were not filed using the Automated Broker Interface (“ABI”) a paper request for preference needed to have been filed 180 days after the date of entry.

The Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. 106-170, 5 Stat. 508, states that for merchandise entered after the date of enactment, December 17, 1999, the GSP applies. The ACS records for both subject entries indicate the entries were made on December 20, 1999. Because this entry date is after the date of enactment of the aforementioned law, the GSP is applicable.

We note that the port’s assertion that an additional request for preferential treatment would have been required had the entries been made between the date of expiration (June 30, 1999) and the date of renewal (December 17, 1999) of the GSP.

According to 19 CFR 10.172, “If duty-free treatment is claimed at the time of entry, a written claim shall be filed on the entry document by placing the symbol “A” as a prefix to the subheading of the Harmonized Tariff Schedule of the United States for each article for which such treatment is claimed.” The paper entries, CF7501s, both include the SPI “A” with the HTSUS classification. Since the entries are paper entries, they therefore could not have been filed ABI. ABI provides an interface for brokers to directly file electronic paperless entries. Entries are filed either with the use of CF 7501, paper entries, or with ABI, electronic entries. The CF7501s evidence that the information was entered on a paper entry and therefore entered into ACS by CBP. The omission of the SPI “A” in the ACS record therefore was an error on the part of CBP. Had the SPI “A” been entered in ACS, the entries would have liquidated GSP.

The protestant filed the entry after date of enactment of the Ticket to Work and Work Incentives Improvement Act of 1999, and therefore only needed to indicate, with the use of the SPI “A,” that the entered goods were subject to preferential treatment under the GSP. The protestant complied with this requirement.

HOLDING:

Liquidating the above entries without preferential treatment under the Generalized System of Preferences is a mistake correctable under 19 U.S.C. §1520(c)(1).

This protest is GRANTED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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