HQ 0225095 - Protest 2304-93-100444; posting of the bulletin notice of liquidation; Customs physical control over bulletin notice of liquidation; 19 CFR 159.9; Courtesy notice of liquidation; 19 U.S.C. 1514(a); 19 U.S.C. 1520(c)(1); Godchaux-Henderson Sugar Co., v. U.S.; HQ 224385; Failure to submit requested manufacturer's affidavit is not clerical error, mistake of fact or inadvertence correctable pursuant to section 1520(c)(1); Cavazos v. U.S. - United States International Trade Commision Rulings

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HQ 225095

May 23, 1994

LIQ-13-CO:R:C:E 225095 AJS

CATEGORY: LIQUIDATION

District Director of Customs
U.S. Customs Service
Lincoln Juarez Bridge
P.O. Box 3130
Laredo, TX 78044-3130

RE: Protest 2304-93-100444; posting of the bulletin notice of liquidation; Customs physical control over bulletin notice of liquidation; 19 CFR 159.9; Courtesy notice of liquidation; 19 U.S.C. 1514(a); 19 U.S.C. 1520(c)(1); Godchaux-Henderson Sugar Co., v. U.S.; HQ 224385; Failure to submit requested manufacturer's affidavit is not clerical error, mistake of fact or inadvertence correctable pursuant to section 1520(c)(1); Cavazos v. U.S.

Dear Sir or Madame:

This is our decision in protest number 2304-93-100444, dated October 26, 1993, concerning the liquidation of an entry.

FACTS:

The subject entry was liquidated on January 8, 1993. The protestant claims that a bulletin notice of liquidation was not posted for this entry, nor did it receive a courtesy notice of liquidation. The protestant also claims that the bulletin notices are under the physical control of the Customs district. A Customs official indicated that the notices are posted in a lobby which the public may enter and depart during normal business hours. No Customs officials monitor the activities of the public in the lobby.

This office contacted Customs officials from your district concerning the posting of notices. One official stated that she received a telephone call from the protestant's employee requesting information for checking posted bulletin notices. Later that day, the official was contacted by the protestant claiming that a posted bulletin notice did not exist for the subject entry. The Customs official subsequently checked the posted bulletin notices and observed that two pages from the notices were missing.

Customs also maintains a "money bulletin" which is not available to the public. This bulletin contains the identical information as the posted bulletin notices except that it also contains the amount of duty owed on liquidated entries. This duty information is deleted from the posted bulletin notices for privacy reasons. The money bulletin contained the pages missing from the posted bulletin notices and listed the liquidation date of the subject entry as January 8, 1993.

Customs officials also checked the Automated Broker Interface (ABI) system to ascertain whether the system contained the liquidation date of the subject entry. The information in the ABI system and posted bulletin notices are derived from the same source. The protestant is an ABI broker who possesses electronic access to its liquidated entries. The ABI system indicated that the subject entry was liquidated on January 8, 1993. The protestant points out that the ABI system also lists the liquidated duty as $0.00 and collection status of "paid". A review of Customs ABI records indicates that a liquidated duty amount was trans- mitted to the protestant. A conversation with Customs ABI representative indicates that the reason for this discrepancy was due to the protestant's print program software which did not recognize the liquidated amount and printed $0.00 on its report. In our view, however, the important point of the ABI system is that it also indicates that the liquidation of the subject entry was January 8, 1993.

Customs issued a Customs Form (CF) 29 to the protestant on October 30, 1992, proposing to reclassify the subject entry as dutiable because the protestant failed to submit information required to support its claimed classification. Customs issued another CF 29 on December 15, 1992, stating that the subject entry was in the liquidation process and no longer available for review in that office. The protestant claims it did not receive a CF 29 for this entry.

ISSUE:

Whether the subject entry was properly liquidated pursuant to 19 CFR 159.9.

Whether the protestant's failure to provide a requested Manufacturer's Affidavit is a clerical error, mistake of fact or other inadvertence correctable under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

Initially, we note that this protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(A). The entry was liquidated on January 8, 1993, Customs refused to reliquidate
the entry on August 3, 1993, and this protest was filed on October 23, 1993. We also note that the refusal to reliquidate an entry under section 1520(c) is protestable.

19 CFR 159.9(c) provides that the bulletin notice of liquidation shall be dated with the date it is posted or lodged in the customhouse. This posting or lodging shall be deemed the legal evidence of liquidation. The evidence in this case indicates that the bulletin notice of liquidation was posted on January 8, 1993.

The protestant claims that the bulletin notices are under the physical control of the Customs district. If, by this claim, the protestant means that the notices cannot be tampered with, it is mistaken. The notices are posted in a lobby which the public may enter and depart during normal business hours. No Customs officials monitor the activities of the public in the lobby. Therefore, we do not accept the protestant's assertion that the notices are under the physical control of Customs.

The protestant also claims it did not receive a courtesy notice of liquidation on CF 4333-A. We note that 19 CFR 159.9(d) does not require Customs to provide a courtesy notice of liquidation but merely states that Customs will endeavor to provide such a notice. In addition, such notice is only an informal one and not the decisive legal notice of liquidation.

19 U.S.C. 1514(a) provides that the liquidation of an entry is final and conclusive upon all persons unless a protest is filed or a civil action is commenced in the Court of International Trade. Section 1514(c)(2)(A) requires a protest to be filed within 90 days after the notice of liquidation. As stated previously, notice of liquidation was January 8, 1993. The protestant failed to protest this liquidation within 90 days. Therefore, the liquidation of the subject entry, and specifically the classification decision reached in the entry, is final.

19 U.S.C. 1520(c)(1), however, provides that:

Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary of the Treasury, reliquidate an entry 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 appropriate customs officer within one year after the date of liquidation or exaction.

It is claimed that in July of 1993, the protestant became initially aware of the liquidation in question from contact with its surety. On July 23, the protestant sent Customs a letter inquiring into the matter. This letter states that the protestant's inquiry was accepted as a petition. 19 CFR 173.4(a) provides that the district director, upon timely application, may correct pursuant to section 1520(c)(1), a clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section, by reliquidation or other appropriate action. On August 3, Customs responded to the protestant's petition. Customs treated the protestant's petition as a request for reliquidation, and denied the request. This request was denied because Customs determined that the situation described in the request did not involve a clerical error, mistake of fact, or other inadvertence correctable pursuant to section 1520(c)(1). Instead, Customs actions concerning the classification of the merchandise involved construction of the law. In such instances, the proper course of action is to file a protest under section 1514.

Section 1520(c)(1) is not intended to be a simple alternative for importers who fail to file timely protests. As stated previously, the protestant failed to file a timely protest concerning the liquidation of the subject entry. This provision "is not remedial for every conceivable form of mistake or inadvertence adverse to an importer but rather the statute offers 'limited relief'." Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct. 68, 74, C.D. 4874, 496 F. Supp. 1326 (1980). In other words, the subject entry may be reliquidated only if the classification decision rendered in the liquidation of the entry was resolved due to a clerical error, mistake of fact or other inadvertence.

The Customs Service has held that the submission of incorrect or incomplete documentation and the failure to submit, or late submission, of "correct" documentation are not correctable errors under 19 U.S.C. 1520(c)(1). See HQ 224385 (May 24, 1993), HQ 222610 (November 7, 1990), HQ 221590 (October 30, 1989), and HQ 221680 (October 16, 1989). In this case, the protestant failed to submit documentation requested by Customs. Therefore, this failure is not a clerical error, mistake of fact or inadvertence correctable under section

In this case, the protestant asserts that the subject merchandise was erroneously classified and requests that it be permitted to submit information supporting the reclassi- fication of the merchandise within subheading 9801.00.10, Harmonized Tariff Schedule of the United States (HTSUS). An erroneous classification of merchandise is not remedial as a clerical error, mistake of fact or inadvertence under 19 U.S.C. 1520(c)(1), as it is a conclusion of law which may only be corrected by the filing of a protest. Cavazos v. United States, 9 CIT 628, 631 (1985); Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262, C.D. 4547, 377 F. Supp. 955, 960 (1974). In HQ 224385, Customs specifically stated that the denial of duty-free treatment under the "American goods returned" provision of subheading 9801.00.10, HTSUS, is a legal determination which is not correctable under section 1520(c)(1) as a mistake of fact since it is instead a mistake of law. Accordingly, the classification decision rendered in the subject entry is a conclusion of law which is also not correctable under section

HOLDING:

The protest is denied. The subject entry was properly liquidated on January 8, 1993. The protestant's failure to provide a requested Manufacturer's Affidavit is not a clerical error, mistake of fact or other inadvertence correctable under section 1520(c)(1).

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

Tariff No.: 9801.00.10 - U.S. goods returned without having been advanced in value or improved in condition while abroad