HQ 0222525 - Application for Further Review of Protest No. 5301-88- 000628 under 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 222525

November 14, 1990

LIQ-9-01-CO:R:C:E 222525 CB

CATEGORY: LIQUIDATION

Regional Commissioner
U.S. Customs Service
5850 San Felipe Street
Suite 500
Houston, TX 77057-3012

RE: Application for Further Review of Protest No. 5301-88- 000628 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 merchandise at issue consists of various fasteners which were appraised with an increase over the entered value. According to the protestant, at some time prior to October 10, 1984, the district director concluded that importer's entries of certain merchandise should be appraised with an advance in value by the addition of a fixed percentage. Protestant states that its attorneys tried to determine Customs basis for appraisement and offer alternate formulas.

Protestant claims that it was clear that Customs intended to withhold liquidation of the subject entries pending further information about the import transactions because suspension notices were received by the importer. The protestant states that extension notices were substituted for the suspension notices beginning around September 24, 1985. Per the protestant, extension notices continued to be issued by Customs for entries through March 13, 1986. No further extension notices were received for later entries, but no liquidation notices were received by protestant after February, 1986. On October 17, 1986, eighty-four (84) entries were liquidated, including forty- seven (47) entries for which protestant had received suspension or extension notices.

According to protestant, the extension notices should have protected at least twenty-six (26) of the liquidated entries. Moreover, twenty-two (22) of the earlier entries should have been
protected from liquidation by suspension because there is no evidence that any legal bar to liquidation had been lifted. It is protestant's contention that the October, 1986, liquidations were the result of an inadvertence, mistake of fact or clerical error because Customs deviated from its usual format and mailing routine when it issued the notice of liquidation on October 17, 1986.

Additionally, protestant contends that it acted under a mistake of fact due to clerical errors made by both Customs and importer's clerk. Protestant maintains that instead of sending the usual CF 4333-A's, Customs sent protestant a long perforated computer printout of a a type used internally by the agency. When the printout was received by a mail clerk it was filed rather than routed to the import manager and importer's attorney and, thus, protestant discovered the notice too late to protest the appraisement of the entries. Moreover, that the printout was sent to protestant's former address, rather than to the current address, and the notice was delayed for several weeks. Finally, that Customs failed to forward duplicate copies of the notice to the broker and protestant's general counsel as had been done with all of the previous CF 4333-A's issued by Customs. If this procedure had been followed, either the general counsel or the broker would have inquired into the significance of the printout in time to file a protest.

ISSUE:

Whether or not reliquidation of the subject entries is required under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

Section 520(c)(1) 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 of 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 C.F.R. 173.4. Section 520(c)(1) 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, 554, 622 F. Supp. 1083, 1085 (1985); see also Universal Cooperatives, Inc. v. United States, 23 Cust. B. & Dec. No. 29, p. 38, Slip Op. No. 89-89 (Ct. Int'l Trade June 27, 1989).

Protestant contends that the entries were mistakenly liquidated because there was an understanding by the importer's attorneys that Customs would withhold liquidations pending resolution of questions regarding the method of appraisement. Protestant relies on CSD 79-386 and Omni U.S.A., Inc. v. United States, 11 Ct. Int'l Trade 480, 663 F. Supp. 1130, (1987), aff'd, 840 F.2d 912 (Fed. Cir. 1988), cert. denied, 109 S. Ct. 56 (1988) as a basis for this argument. In both of these instances, entries were liquidated inadvertently. However, in the instant protest, the Customs district officials have stated that the appraisement and liquidation were deliberate actions which carried out the express wishes of the Customs officers involved. That being the case, the Omni U.S.A. holding and CSD 79-386 are distinguishable and liquidation of these entries was proper.

It is well-settled law that the importer of record has the obligation to check the bulletin notice of liquidations posted in the customhouse at the port of entry to determine the date of liquidation and to preserve the right to protest. Tropicana Products, Inc. v. United States, 23 Cust. B. & Dec. No. 24, p. 16, Slip Op. No. 89-64 (Ct. Int'l Trade May 12, 1989). The only statutorily mandated notice of liquidation is the bulletin notice. See 19 C.F.R. 159.9(b),(c); Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 13 Ct. Int'l Trade ___, 706 F. Supp. 892, 895 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); United States v. Reliable Chemical Co., 605 F.2d 1179, 1183, 66 C.C.P.A. 123, 127, C.A.D. 1232 (1979).

Protestant argues that Customs made a clerical error by sending out a computer printout, rather than the standard CF 4333-A. Moreover, that the notice was mistakenly sent to protestant's former address. This same issue was addressed by the Goldhofer court. In that case, the court held that the courtesy CF 4333-A that Customs customarily sent to importers was not mandatory such that an importer could rely on its failure to receive such notice as reason for its failure to timely protest liquidation. Nothing in the instant protest requires a different conclusion. Even though the courtesy notice was sent out in the form of a computer printout, the notice is clearly labeled "Courtesy Notice of Entries Scheduled to Liquidate." Therefore, protestant had a clear indication of Customs intent.

There is no mistake of fact or clerical error in this case within the meaning of 19 U.S.C. 1520(c)(1). The error in this case was the broker's failure to perform his duty of finding out the correct date of liquidation for the subject entries. Such an error does not entitle the importer to equitable relief. See Occidental Oil & Gas Co., v. United States, 13 Ct. Int'l Trade ___, Slip Op. No. 89-40 (March 29, 1989).

HOLDING:

Since a clerical error, mistake of fact or inadvertence in the entries and liquidation is not manifest from the record, or established by documentary evidence, you are advised to DENY the protest.

Sincerely,

John Durant, Director

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