HQ 0223112 - Application for Further Review of Protest No. 2809-90- 000231; Bulletin Notice of Liquidation; Goldhofer Fahrzeugwerk GMBH & Co., v. United States; 19 U.S.C. - United States International Trade Commision Rulings

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HQ 223112

August 27, 1992

LIQ-9-01-CO:R:C:E 223112 PH

CATEGORY: LIQUIDATION

Regional Commissioner of Customs
Pacific Region

RE: Application for Further Review of Protest No. 2809-90- 000231; Bulletin Notice of Liquidation; Goldhofer Fahrzeugwerk GMBH & Co., v. United States; 19 U.S.C.

Dear Sir:

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

FACTS:

According to the file, on March 22, April 20, July 18, September 23, October 11, October 23, and November 21, 1988, the protestant entered various ceramic and metal sanitary ware. The merchandise was entered under item 535.3123, Tariff Schedules of the United States (TSUS), and was so liquidated on November 18, August 5, September 16, November 18, November 25, December 30, and December 30, 1988, respectively.

On August 2, 1989, the protestant filed a request that the entries be reliquidated under 19 U.S.C. 1520(c) because, according to the protestant, the importer did not know that the merchandise qualified for duty-free entry under the Generalized System of Preferences (GSP). With this request, the protestant filed Certificates of Origin (GSP Forms A) for the merchandise. Customs denied the request for reliquidation under 19 U.S.C. 1520(c) on November 7, 1989.

On February 5, 1990, the protestant filed the subject protest and application for further review. The bases given by the protestant for the protest are: (1) that the liquidations of the entries are null and void ab initio because the bulletin notices of liquidation for the entries did not specify the name of the importer of record; and (2) that the entries should have been reliquidated under 19 U.S.C. 1520(c)(1) as requested.

ISSUES:

(1) Is the listing of the entry filer code of the Customs broker who was the importer of record, rather than the name of the importer of record, on the bulletin notices of liquidation sufficient notice of liquidation under Goldhofer Fahrzeugwerk GMBH & Co., v. United States, 885 F.2d 858 (CAFC 1989)?

(2) Was there sufficient evidence in this case to grant the petition filed under 19 U.S.C. 1520(c)(1), the denial of which is the subject of this protest?

LAW AND ANALYSIS:

Initially, we note that both the request for reliquidation under 19 U.S.C. 1520(c)(1) and the protest of the denial of that request, under 19 U.S.C. 1514(a), were timely filed.

ISSUE (1)

Under 19 U.S.C. 1500, Customs shall, among other things, liquidate the entry of imported merchandise and give notice of such liquidation to "the importer, his consignee, or agent", under rules and regulations prescribed by the Secretary of the Treasury. Under 19 U.S.C. 1504, unless the period in which an entry must be liquidated has been properly extended or the liquidation has been suspended, an entry not liquidated within one year from the date of entry of the merchandise shall be deemed liquidated as entered.

The statutory provision for protests is found in 19 U.S.C. 1514. Under this statute, the liquidation or reliquidation of an entry is final and conclusive upon all persons unless a protest is filed in accordance with the statute or a civil action con- testing the denial of a protest is timely filed in the Court of International Trade. Under paragraph (c)(2) of this provision, a protest under this section must be filed with Customs within 90 days after "the notice of liquidation", or the date of the decision which is protested.

The Customs Regulations pertaining to the liquidation of entries are found in 19 CFR Part 159. Under 19 CFR 159.9, notice of liquidation of formal entries shall be made on a bulletin notice of liquidation, CF4333.

The protestant contends, on the basis of Goldhofer Fahrzeugwerk GMBH & Co., v. United States, 885 F.2d 858 (CAFC 1989), cert. den., 110 S. Ct. 1946 (1990), that the liquidations in this case were void ab initio because of the omission of the name of the importer of record in the bulletin notice of liquida- tion. In the Goldhofer case, the Court held that the due process requirements of the Constitution were satisfied by Customs bulletin notice of liquidation procedures, even though the courtesy notice of liquidation (see 19 CFR 159.9(d)) was sent by Customs to the wrong party. At the time of the liquidation with which the Goldhofer case was concerned, of course, the importer of record was named in the bulletin notice of liquidation.

After reviewing the minimum requirements in this regard as articulated by the Supreme Court (see 885 F.2d at 861), the Court in Goldhofer stated that "Customs is constitutionally required to provide [the importer] with notice 'as certain to ensure actual notice' that liquidation has occurred, as would mail notice" (885 F.2d at 861). The Goldhofer Court proceeded to list a number of factors which resulted in Customs procedures for bulletin notices of liquidations meeting these minimum requirements. The Court noted that by entering merchandise into the Customs territory, the importer is statutorily notified that the merchandise will be liquidated and, since Customs regulations require that the bulletin notice of liquidation shall be posted at the port of entry of the merchandise, the importer is informed (by regulations) where the bulletin notice of liquidation will be posted. In addition, the Court stated, the bulletin notice of liquidation is designed to attract the attention of the interested parties. "Among other things, [it] lists the name of the importer of record, the date of entry, the liquidation date, the region/district/port number, the action, and the type of entry and number." (885 F.2d at 862, emphasis added.) The Court stated that bulletin notice of liquidation has not been shown to be an unreliable means of providing notice (i.e., there was no evidence that the notices posted in the Customhouse had been removed before they could have their intended effect of notifying the importer of record and any other interested parties that liquidation had occurred). The Court also looked to the purpose and effect of the type of notice under consideration (i.e., bulletin notice of liquidation has both a legal and a warning effect), before concluding that:

... posting of bulletin notice of liquidation in the customhouse at the port of entry alone was as certain to ensure actual notice of liquidation to the importer of record or its local Customs broker as mail notice and, therefore, mail notice was not constitutionally required. [885 F.2d at 863.]

The factors listed in the Goldhofer decision are existent in this case, except that instead of listing the "name of the importer of record," the bulletin notices of liquidation listed a three digit number (filer code) assigned only to the filer of the entries in this case. There is no evidence submitted, nor is their any allegation made, that the filer code listed for these entries was incorrect. Under the Customs Regulations, the filer of the entries must have placed the filer code with the entry numbers on the entries and/or entry summaries under consideration (see 19 CFR 142.3a), so there can be no argument that the protestant was unaware of the filer code. In view of the foregoing, we conclude that listing the filer code (known to the entry filer) on the bulletin notices of liquidation does satisfy the constitutional due process requirements, as considered and ruled upon in the Goldhofer case.

In this case, the entry filer code listed on the bulletin notices of liquidation was the same as the filer code listed on the entries and represented a Customs broker. The case of Joseph Ullmann Brokerage Corp. v. United States, 29 Cust. Ct. 254, C.D. 1478 (1952), involved the issue of whether bulletin notices of liquidation listing the Customs broker which had filed the entries on behalf of the owner constituted adequate notice of the liquidations. In that case, an owner's declaration was filed with Customs under 19 U.S.C. 1485 and the owner requested Customs to re-post the liquidations as to the entries in the name of the owner. The Court affirmed Customs decision that the posting of the notices of liquidation in the name of the importer of record (i.e., the Customs broker) constituted adequate notice (see Pike- Simmons Co. v. United States, 2 Cust. Ct. 187, C.D. 120 (1939); rehearing denied, 2 Cust. Ct. 665, Abstract 41073 (1939), to the same effect).

The above Court cases were decided before the enactment in 1970 of the current statutory provision governing notice of liquidation (in 19 U.S.C. 1500(e)) (formerly the requirement was to give notice of liquidation in the form and manner prescribed by the Secretary of the Treasury, see section 505, Tariff Act of 1930). However, the legislative history to Public Law 91-271, the law which enacted the current section 19 U.S.C. 1500(e), makes it clear that there was no intent to change the then existing practice of giving notice of liquidation (see H. Report 91-267, 91st Cong., 2nd Sess. (1970), reprinted at 1970 U.S.C.C.A.N. 3188, 3209-3210, "[i]t is contemplated that the posting of notice of liquidation will continue to constitute 'legal' notice under customs regulations ... [and] the present practice of mailing actual notice of liquidation of all dutiable formal entries to the last known address of the importer of record [will not be discontinued]" (emphasis added)). Section 1500(e) requires that, "under rules and regulations prescribed by the Secretary", the notice of liquidation be given to the importer, his consignee, or agent "in such form and manner as the Secretary shall prescribe in such regulations". Under its rules and regulations, (see 19 CFR 142.3a(a)(1) and T.D. 88-38), Customs gives this notice by listing the entry filer code on the bulletin notice of liquidation. Under 19 U.S.C. 1484(a)(2)(C), an entry filer is required to be the "importer of record" (i.e., the owner or purchaser of the merchandise or an appropriately designated broker (see 19 U.S.C. 1484)) (note also, that the Goldhofer case, decided under the current provision, approved the listing of the importer of record). Therefore, we conclude that a bulletin notice of liquidation listing the entry filer code of the Customs broker whose entry filer code was listed on the entries continues to satisfy the liquidation notice requirement in section 1500(e).

The protest is DENIED with regard to this issue.

ISSUE (2)

Under section 520(c)(1), Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)), Customs may reliquidate an entry to correct a clerical error (see PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and cases cited therein), mistake of fact (see Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F.2d 850 (1979)), or other inadvertence (see Occidental Oil & Gas Co. v. United States, Vol. 23 Cust. Bull. & Dec. No. 17, April 20, 1989, page 40, 42, CIT Slip Op. 89-40), not amounting to an error in the construction of a law (see Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262-263, C.D. 4547 (1974), and cases cited therein) when certain conditions are met.

The conditions required to be met under 19 U.S.C. 1520(c)(1) are that the clerical error, mistake of fact, or other inadver- tence 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 liquida- tion of the entry. The relief provided for in 19 U.S.C. 1520(c)(1) is not an alternative to the relief provided for in the form of protests under 19 U.S.C. 1514; section 1520(c)(1) only affords "limited relief in the situations defined therein" (Phillips Petroleum Company v. United States, 54 CCPA 7, 11, C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc., v. United States, 85 Cust. Ct. 68, 69, C.D. 4874 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986)).

Basically, the clerical error, mistake of fact, or other inadvertence upon which the request for relief under 19 U.S.C. 1520(c) was based in this case was that the importer did not know that the merchandise was eligible for duty-free treatment under the GSP and, therefore, did not submit GSP Forms A until after liquidation of the entries. The protestant cites United States v. C.J. Tower & Sons of Buffalo, 61 CCPA 90, C.A.D. 1129 (1974), as supporting its contention that this is a case in which relief under 19 U.S.C. 1520(c)(1) should be granted.

It may be that some of the facts in this case, as alleged by the protestant in its brief, are analogous to the facts in the C.J. Tower & Sons of Buffalo case, cited above. However, as explicitly stated in 19 U.S.C. 1520(c)(1), in order to qualify for relief under that provision, the clerical error, mistake of fact, or other inadvertence must be manifest from the record or established by documentary evidence. According to the Court in PPG Industries, Inc. v. United States, 4 CIT 143 (1982), quoting, in part, from the lower court in Hambro, id, (Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220 (1978)):

... it is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact. The burden and duty is upon the plaintiff to inform the appropriate Customs official of the alleged mistake with "sufficient particularity to allow remedial action." [4 CIT at 147-148; see also, United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), in which the Court stated "[d]etermination of issues in customs litigation may not be based on supposition."]

In this case there is no evidence of the claimed clerical error, mistake of fact, or other inadvertence other than the statements by the protestant's representative in the request for reliquidation and the protest that the protestant did not know that the merchandise qualified for duty-free treatment under the GSP (see Bar Bea Truck Leasing Co., Inc., v. United States, 5 CIT 124, 126 (1983), with regard to the sufficiency as evidence of a counsel's unsupported assertions). There is no explanation, even by the protestant's representative, as to how and why the protestant did not know of the possible qualification for GSP treatment of the merchandise, nor is there any documentary evidence in this regard (e.g., see C.J. Tower & Sons of Buffalo, Inc. v. United States, supra (cited by the protestant), and C.S.D. 89-87).

In the absence of sufficient evidence establishing that failure to claim GSP treatment for the merchandise under consid- eration was the result of a clerical error, mistake of fact, or other inadvertence correctable under 19 U.S.C. 1520(c)(1), the protest must be DENIED, with regard to this issue. HOLDINGS:

(1) The listing of the entry filer code of the Customs broker who was importer of record, rather than the name of the importer of record, on the bulletin notices of liquidation does provide sufficient notice of liquidation under Goldhofer Fahrzeugwerk GMBH & Co., v. United States, 885 F.2d 858 (CAFC 1989).

(2) The evidence submitted in this case was insufficient to grant the petition filed under 19 U.S.C. 1520(c)(1), the denial of which is the subject of this protest.

The protest is DENIED. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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