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HQ 224113




November 26, 1993

LIQ-9-01-CO:R:C:E 224113 SR

CATEGORY: ENTRY PROTEST

District Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Application for Further Review of Protest No. 3801-2-101792; Protest of 19 U.S.C. 1520(c)(1) denial; 19 CFR 173.3(a); Omni U.S.A. v. United States.

Dear Sir:

The above referenced protest was forwarded to our office on Application for Further Review of Protest No. 3801-2-101792, dated June 3, 1992. We have considered the facts and the issues raised; our decision follows.

FACTS:

The protestant entered identical merchandise in the ports of Buffalo and Detroit. The merchandise entered in Buffalo was liquidated under subheading 8707.99.5090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for automobile parts. The protestant filed an Application for Further Review claiming that the merchandise should be classified under subheading 3815.12.00, HTSUS, which provides for reaction initiators. This protest was allowed on September 25, 1991, in HQ 089565. The merchandise was entered in Detroit between February 27 and June 6, 1990 and was liquidated on July 13, 1990 and August 3, 1990. Therefore, the Detroit entries were liquidated either 6 or 27 days after the Protest/Application for Further Review was filed in Buffalo. The merchandise in Detroit was also liquidated under subheading 8708.99.5090, HTSUS, as automobile parts.

The protestant filed a Protest and Application for Further Review No. 3801-0-003734 on December 17, 1990 concerning the merchandise entered in Detroit. This was denied on January 31, 1991, because the classification was correct as liquidated. On July 23, 1991, civil action (CIT No. 91-07-00526) was commenced in the Court of International Trade contesting the denial of Protest No. 3801-0-003734. This pending court case is based
strictly on the classification issue and not the mistake of fact issue. On December 16, 1991, the protestant filed a request for reliquidation pursuant to 19 U.S.C. 1520(c)(1) covering the merchandise entered in Detroit. This was denied on March 19, 1992, because no inadvertence, mistake of fact, or clerical error was shown and it was not timely. The current protest was filed on June 3, 1992.

ISSUE:

Whether the merchandise at issue should be reliquidated under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

Reliquidation because of a mistake of fact is provided for in 19 U.S.C. 1520(c)(1) as follows:

(c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, 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.

In the case at issue, the claim under 1520(c)(1) was denied because no inadvertence, mistake of fact or clerical error was shown and because the request for reliquidation was untimely. The protestant argues that the protest is timely because it was filed within 90 days from the refusal to reliquidate under section 1520(c)(1), as provided in 19 CFR 174.11(g). 19 CFR 174.11(g) provides that the decision of the district director to refuse to reliquidate an entry under section 1520(c) can be protested. In this case the 1520(c)(1) protest was denied by the district director on the grounds that it was not timely filed and no inadvertence, mistake of fact or clerical error was shown. We must confirm the denial because the 1520(c)(1) claim was not timely filed and no mistake of fact was shown.

Even if the 1520(c)(1) claim was timely it would be denied on the merits. In order to bring a claim under 19 U.S.C. 1520(c)(1), the mistake made must be one of fact not a mistake of
law. These terms are defined in C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, C.D. 4327, 336 F.Supp. 1395 (1972), aff'd 499 F.2d 1277, 61 CCPA 90, C.A.D. 1129 (1974).

A mistake of fact is defined as any mistake except a mistake of law; a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, which in reality does not exist. A mistake of law exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.

The protestant argues that the lack of knowledge of the Detroit district that the protestant protested liquidations of Buffalo entries of the same merchandise was a mistake of fact under 19 U.S.C. 1520(c)(1). The Detroit entries were liquidated on July 13, 1990 and August 3, 1990. The Buffalo protest was decided September 25, 1991.

In pertinent part, 19 U.S.C. 1520, authorizes Customs to reliquidate an entry to correct a mistake of fact if that mistake is brought to the attention of Customs within one year after liquidation. From August 3, 1990 to August 3, 1991, no error existed so as to warrant reliquidation of the Detroit entries. Under 19 U.S.C. 1504(b), Customs could have extended the liquidation of the Detroit entries. However, in not exercising that authority there was no creation of a mistake of fact within the scope of 19 U.S.C. 1520(c)(1). See Omni U.S.A. Inc. v. United States, 11 CIT 480 (1987), affd. 6 Fed. Cir. (T) 99 (1988), cert. den. 109 U.S. 56.

Several court cases were discussed in a meeting with the protestant and were also addressed in the protestant's recent submission. The protestant feels that the case United China & Glass Co. v. United States, 53 Cust. Ct. 68 (1964), is irrelevant to the facts at issue. In the case of United China & Glass a protest was filed with the port of San Francisco to protest a liquidation made by the port of New Orleans. The protests were forwarded to New Orleans but were received after the protest period had expired. Because New Orleans is in a separate Customs jurisdiction than San Francisco the court held that the protest was untimely because it must be received by the collector whose decision is protested. This case is relevant because it shows that a protest filed in Buffalo has no effect on merchandise entered in Detroit. The protestant had the obligation to file a protest in Detroit if he wanted to protest the liquidation in Detroit.

In Wolfe Barth Co., Inc. v. United States, 81 Cust. Ct. 127 (1978), an importer erroneously filed a protest with the Port of

New York instead of the correct port, Philadelphia. The Port of New York erroneously accepted the protest. The Port of New York discovered the error and returned the protest to the importer after the protest period had expired. The protestant had provided no evidence that the Port of New York had accepted or held the protest beyond the time period intentionally. The court in this case followed the reasoning of the court in United China & Glass that the filing of protests, by whim or negligence, with one or another of the many collectors in the United States is not what is intended by the statutes.

The protestant also states that the case Noury Chemical Corporation v. United States, 4 C.I.T. 68 (1982), has no bearing on the ruling at issue. In this case an importer who wished to file a protest sent a letter to Customs Headquarters with a copy sent to the port where the protest should have been filed, the port of Buffalo. Besides the fact that the letter was not filed as a protest with the appropriate district director, the importer also inadvertently omitted one entry (there were eight entries, information for seven entries was provided). The letter was found to be insufficient to constitute a protest.

The Noury Chemical case further supports the fact that if the protestant wanted to protest the actions of the port of Detroit, the protestant had to file a protest with the port of Detroit. Filing of a protest with the port of Buffalo has no effect on the classification or liquidation of entries in Detroit.

HOLDING:

The request for reliquidation because of a mistake of fact under 19 U.S.C. 1520(c)(1) was not timely filed. This protest should be denied in full. A copy of this decision should be attached to the Form 19, Notice of Action, to be sent to the protestant.

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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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 to
the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant

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