HQ 0223902 - Application for Further Review of Protest No. 4195-91- 100210; Clerical Error, Mistake of Fact, or Other Inadvertence; Construction of Law; 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 223902

August 14, 1992

LIQ-9-01-CO:R:C:E 223902 PH

CATEGORY: LIQUIDATION

District Director of Customs
Cleveland, Ohio 44114

RE: Application for Further Review of Protest No. 4195-91- 100210; Clerical Error, Mistake of Fact, or Other Inadvertence; Construction of Law; 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 by your office and the protestant. Our decision follows.

FACTS:

According to the file, between April 25, 1990, and November 14, 1990, the protestant imported from Canada certain merchandise described as "motors & parts", "printed matter", "printed circuit brds", and "motor parts". The merchandise was entered as dutiable under various tariff provisions. The entries were liquidated as entered between August 17, 1990, and March 8, 1991.

On August 15, 1991, the broker of the protestant filed a request that the entries be reliquidated under 19 U.S.C. 1520(c)(1) because the merchandise was eligible for reduced duty rates under the provisions of the United States-Canada Free- Trade Agreement (FTA). According to the broker--

... an Exporter's Certificate of Origin [ECO] was not submitted at the time of entry due to the fact that [the importer] did not have the information necessary to determine the correct origin criteria. After consulting with knowledgeable individuals, the origin criteria was determined [and the importer] proceeded to issue [ECO's] for entries that contained eligible merchandise.

ECO's for the merchandise, dated August 15, 1991, were attached to the 19 U.S.C. 1520(c)(1) petition. Based on these ECO's, the representative of the protestant requested that the entries be reliquidated with the benefit of the reduced duty rate under the FTA. The representative stated that the mistake of fact in this case was that "[the importer] did not have the knowledge to determine the correct origin criteria, therefore, is unable to prepare an [ECO]."

On September 20, 1991, Customs denied the petition for relief under 19 U.S.C. 1520(c)(1) because the ECO's were not filed at the time of the entry summary, citing 19 CFR 10.307(a) and (d). On December 11, 1991, the representative of the protestant filed the protest under consideration and applied for further review. The grounds for the protest were basically the same as those stated in the initial request for reliquidation under 19 U.S.C. 1520(c)(1), although it was also claimed that "when it was determined that the merchandise was eligible, and the [ECO] was prepared, it was prepared incorrectly", resulting in further delay.

Cited by the representative of the protestant to support the above is a letter from the protestant dated April 10, 1991, in which the protestant stated that "[t]hough our motors contained 90% or greater Canada/U.S.A. content there was some misunderstanding of the origin criteria rules at that time. This was clarified through origin consultation with our brokers and customs people and we resumed issuing [ECO's] on 19 September 1990 under the correct criteria." In this April 10, 1991, letter, the protestant also stated that ECO's were not issued during the period April 24, 1990, to September 19, 1990, after which date (based on the clarification of the "origin criteria rules") ECO's were again issued.

ISSUE:

In this case, as described in the FACTS portion of this ruling, was the failure of the protestant to claim preferential duty treatment under the FTA a clerical error, mistake of fact, or other inadvertence for which relief may be granted under 19 U.S.C. 1520(c)(1)?

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.

Under 19 U.S.C. 1520(c)(1), Customs may reliquidate an entry to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law when certain conditions are met. These conditions are that the clerical error, mistake of fact, or other inadvertence 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 liquidation of the entry.

One of the requirements under section 1520(c)(1) is that the clerical error, mistake of fact, or other inadvertence which is the basis for the request for relief may not amount to an error in the construction of law. A mistake of law, for which relief cannot be had under section 1520(c)(1), has been defined to exist "where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts" (Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1979), quoting 58 C.J.S. Mistake, section 832; and C.J. Tower & Sons of Buffalo, Inc. v. United States (cited above)). Also, in this regard, see Universal Cooperatives, Inc., v. United States, 13 CIT 516, 518; 715 F. Supp. 1113 (1989), in which the Court distinguishes between decisional mistakes, "in which a party may make the wrong choice between two known alternative set[s] of facts ... [which] must be challenged under [19 U.S.C. 1514]" and ignorant mistakes, "in which a party is unaware of the existence of the correct alternative set of facts ... which must be remedied under [19 U.S.C. 1520]."

In the April 10, 1991, letter from the protestant, cited by the representative of the protestant as establishing the reason why the ECO's were not timely filed, the protestant stated that the reason for not filing the ECO's was that "there was some misunderstanding of the origin criteria rules at that time" (emphasis added). This clearly indicates that the mistake in this case was one of law (see, Concentric Pumps, Ltd. v. United States, 10 CIT 505, 643 F. Supp. 623 (1986); see also NEC Electronics U.S.A., Inc. v. United States, 13 CIT 214; 709 F. Supp. 1171 (1989)).

We note that in the April 10, 1991, letter, the protestant stated that the "origin criteria rules" were clarified on September 19, 1990 and that the protestant resumed issuing ECO's on that date under the correct criteria. If this is so, the protestant could have obtained relief for the entries under consideration under 19 U.S.C. 1514 (i.e., because three of the entries were liquidated after September 19, 1990, and the liquidations of the other two entries were well within the 90- day protest period (see U.S. Customs Service Fact Sheet 22 dated August 16, 1990). In this regard, we note that the Courts have held that "... [19 U.S.C. 1520(c)(1)] is not considered an alternative to a liquidation/protest review under 19 U.S.C. 1514, and its application is limited to [the circumstances therein]" (NEC Electronics, supra, 13 CIT at 216).

With regard to the claim by the representative of the protestant that when the ECO's were prepared, they were prepared incorrectly resulting in further delay, we note that this claim was not made in the 19 U.S.C. 1520(c)(1) petition; it was only made in the protest of the denial of the 19 U.S.C. 1520(c)(1) petition. When a claimed error is not manifest from the record or made apparent by documentary evidence submitted by the petitioner with sufficient particularity to allow remedial action within the time for filing the petition for relief under 19 U.S.C. 1520(c)(1), relief may not be granted under that provision (Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, C.D. 4761, 458 F. Supp. 1220 (1978); aff'd 66 CCPA 113, C.A.D. 1231, 603 F. 2d 850 (1979); PPG Industries, Inc. v. United States, 4 CIT 143 (1982)). The claimed error in preparing the ECO's was not brought to the attention of Customs within the time for filing the petition for relief under 19 U.S.C. 1520(c)(1) and, therefore, relief may not be granted on this basis. Even if the claimed error in preparing the ECO's had been timely brought to the attention of Customs, we note that:

... 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." [PPG Industries, Inc. v. United States, 4 CIT at 143, 147-148 (1982); 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 on the claimed error in preparing the ECO's other than the statement by the protestant's representative in the protest (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 as to the nature of the claimed error. There is no statement of when the incorrect ECO's were filed and when the correct ECO's were filed (i.e., no explanation of how much of the delay was due to the alleged error in preparing the ECO's). There is no affidavit by an appropriate employee of the protestant and/or manufacturer or foreign exporter as to the facts of the claimed clerical error, mistake of fact, or other inadvertence (for an example of the use of such evidence, see C.S.D. 89-87).

The protestant cites the granting of another protest of a refusal to reliquidate an entry under 19 U.S.C. 1520(c)(1) as authority for granting this protest. The documents available to us with regard to this other protest are insufficient to establish that the procedures and facts pertaining to that protest are materially the same as those in the protest under consideration (although we note that the date of liquidation of the entry in the other protest was April 27, 1990, more than 90 days before the "origin criteria rules" were "clarified" for the protestant and the protestant resumed issuing ECO's, according to the April 10, 1990, letter from the protestant (described above)). Furthermore, we do not accept the proposition that a decision by one Customs district director governs all similar requests for reliquidation under 19 U.S.C. 1520(c)(1) or protests. As explained above, we do not believe that there was authority for granting the request for reliquidation in this case.

HOLDING:

The failure of the protestant to claim preferential duty treatment under the FTA, as described in the FACTS portion of this ruling, was not a clerical error, mistake of fact, or other inadvertence for which relief may be granted under 19 U.S.C.

The protest is DENIED. A copy of this decision should be attached to the 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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