HQ 0220880 - Application for further review of Protest No. 3401-7-000033 under 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 220880

January 30, 1991

PRO-2-02-CO:R:C:E 220880 CB

CATEGORY: ENTRY PROTEST

Regional Commissioner
U.S. Customs Service
North Central Region
Suite 1501
55 East Monroe Street
Chicago, ILL 60603-5790

RE: Application for further review of Protest No. 3401-7-000033 under 19 U.S.C. 1520(c)(1)

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the points raised and our decision follows.

FACTS:

The record indicates that on October 22, 1986, the Customs Service sent out telex 13707 concerning the suspension of liquidation of certain softwood lumber products from Canada. The telex instructed the field offices to suspend liquidation and require importers to post a cash deposit or single entry bond equal to 15 percent of the FOB mill price. Additionally, the telex listed certain companies which were excluded from the preliminary determination. The subject entry was made by one of the excepted companies.

On January 2, 1987, the Customs Service sent out telex 016673 advising all field offices of the termination of the countervailing duty investigation, resumption of liquidation, and imposition of a temporary surcharge on all listed softwood lumber products from Canada. The surcharge was imposed by Presidential Proclamation 5595 of December 30, 1986. The telex and proclamation did not indicate whether any companies were exempt from the temporary surcharge. The surcharge was effective as of December 31, 1986.

Telex 00563 was sent out by the Customs Service on January 14, 1987, terminating the collection of the 15 percent surcharge on shipments exported from Canada as of January 8, 1987. The telex indicated that the additional duty should still be collected on shipments exported from Canada on or after December 31, 1986 and on or before January 7, 1987.

The subject merchandise was exported from Canada on January 7, 1987. The consumption entry documentation was dated January 7, 1987. However, the broker requested that it be held until January 8, 1987. Apparently, the Customs inspector changed the date on the invoice and returned it to the broker. The CF 3461ALT shows the merchandise as released on January 7, 1987. According to the record, the Import Specialist noticed the changed date and liquidated the entry with the added 15 percent surcharge. On May 27, 1987 the broker contacted the Customs Service to point out the date of release. The Import Assistant issued a CF 29 indicating that the entry would be reliquidated with a refund. The record indicates that further research disclosed the events as stated above. Therefore, request for reliquidation was denied through the 19 U.S.C. 1520 protest procedure.

Protestant contends that the date of release of the shipment was January 8, 1987 and, therefore, the merchandise is not subject to the 15 percent surcharge. Alternatively, that this entry is exempt from the 15 percent surcharge because the importer was excluded from the October 22, 1986 preliminary determination. We will address the issues in reverse order.

ISSUES:

1) Whether the correct date of release is January 7, 1987, (the date the Customs officer examined and released the merchandise) or January 8, 1987, as requested by the importer?

2) Whether the subject entry was subject to the surcharge imposed by the Presidential proclamation?

3) Whether an error correctable under 19 U.S.C. 1520(c)(1) occurred when the Customs Service liquidated the entry subject to the surcharge?

LAW AND ANALYSIS:

The subject merchandise was released under the immediate delivery provisions. Section 448, of the Tariff Act of 1930, as amended (19 U.S.C. 1448(b)), and the Customs Regulations issued thereunder, provide that the Secretary of the Treasury is authorized to provide for the issuance of special permits for special delivery (immediate delivery), prior to formal entry therefor. The regulations provide, at 19 CFR 142.22, that an application for a special permit for immediate delivery shall be made on the CF 3461. There are no provisions in the regulations which authorize the postponement of the time of release of
merchandise. In the absence of such language, it must be concluded that the time of release of merchandise is established when the application (CF 3461) is submitted and accepted. In the instant case, the CF 3461ALT was submitted on January 7, 1987. It also indicates that the merchandise was released on January 7, 1987. Therefore, the date of release of the subject merchandise was January 7, 1987.

Protestant contends that the subject entry is exempt from the 15 percent surcharge because the importer was excluded from the October 22, 1986 preliminary determination. We disagree with this contention. The imposition of the 15 percent surcharge on the subject entry was based on the Presidential Proclamation of December 30, 1986. The Proclamation does not exempt any importers from the surcharge. It is independent of the October 22, 1986, preliminary determination. Therefore, protestant's reliance on such preliminary determination is unfounded.

The start of the period during which the lumber surcharge was to be imposed was established by the Presidential Proclamation. Paragraph 1 of Presidential Proclamation 5595 of December 30, 1986, imposes the surcharge on lumber that is entered on or after December 31, 1986. The Proclamation also authorized the Secretary of Commerce to take all necessary and appropriate steps to end the temporary surcharge. The Secretary exercised this authority by suspending the temporary surcharge on merchandise exported from Canada on or after January 8, 1987. The Secretary's notice indicated that the surcharge was to be collected on all merchandise exported from Canada on or after December 31, 1986, and on or before January 7, 1987. There is no dispute that, in the instant case, the lumber was in the United States on or before January 7, 1987, having been sent to join the commerce of this country from Canada. Therefore, it was exported within the period of the application of the surcharge.

Regarding protestant's request for reliquidation, section 520(c) of the Tariff Act of 1930, as amended (19 U.S.C. 1520 (c)(1)), provides that Customs may correct certain errors, if adverse to the importer, within one year from the date of liquidation. An entry may be reliquidated in order to correct a clerical error, mistake of fact, or inadvertence not amounting to an error in the construction of a law. See 19 U.S.C. 1520(c)(1); 19 CFR 173.4. Section 520(c) is not an alternative to the normal liquidation-protest method of obtaining review, but rather affords limited relief where an unnoticed or unintentional error has been committed. See Computime Inc. v. United States, 9 Ct. Int'l Trade 553, 622 F. Supp. 1083 (1985); see also Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec. No. 29, p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).

Section T.D. 54848 describes and distinguishes correctable errors under 1520(c). Mistake of fact occurs when a person believes the facts to be other than what they really are and takes action based on that erroneous belief. The reason for the belief may be that a fact exists but is unknown to the person or he may believe that something is a fact when in reality it is not. However, errors in the construction of a law are not correctable under 1520(c)(1). Those occur when a person knows the true facts of a case but has a mistaken belief of the legal consequences of those facts and acts on that mistaken belief. 94 Treas. Dec. 244, 245-246 (1959).

The protestant's claim for relief under 19 U.S.C. 1520(c)(1) is that this entry was exempt from the surcharge based on the October telex; therefore, Customs mistakenly assessed the surcharge at the time of liquidation. We conclude that protestant's claim is outside the scope of 1520(c)(1). As previously stated, the imposition of the 15 percent surcharge was based on the Presidential Proclamation of December 30, 1986. The Proclamation did not exempt any importers from the surcharge. The lumber was subject to the surcharge. It was entered on or after December 30, 1986 and exported on or before January 7, 1987. The denial of the request for reliquidation under 19 U.S.C. 1520(c)(1) was proper since the issue involved an interpretation of a law.

HOLDING:

The date of release of the subject merchandise was January 7, 1987, as indicated on the CF 3461ALT. The merchandise was exported from Canada on January 7, 1987. Therefore, it was subject to the 15 percent surcharge. The subject protest is outside the scope of 19 U.S.C. 1520(c)(1). This protest should be denied for the reasons stated.

Sincerely,

John Durant, Director

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