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HQ 226364




June 21, 1996

LIQ-9-01/LIQ-4-01 RR:IT:EC 226364 JS

CATEGORY: LIQUIDATION

Port Director of Customs
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: Protest and Application for Further Review Nos. 3901-95-100452; 3901-95-100453, 3901-95-100454; 19 U.S.C. Section 1520(c); Countervailing and Antidumping Duty Order; Ceiling Fans from the People's Republic of China

Dear Sir:

The protests named above were forwarded to this office for review. We have considered the protestant's claims, and our decision is as follows.

FACTS:

According to the file, on February 16 and 18, 1995, protests were lodged by Encon Industries, Inc., regarding the liquidation of numerous entries of ceiling fans from the PRC which were assessed a 2.05% dumping duty in accordance with Antidumping No. A570. Antidumping case A570-807 was split into three numbers: A570-807, A570-206, and A570-205. Case A570-807 covers all fans and was used by the U.S. Department of Commerce in all Federal Register notices. Case A570-206 covers ceiling fans from China. Case A570-205 covers oscillating fans from China. The entries covered by this protest involve ceiling fans from China. On March 17, 1995, effective the same day, a notice in 60 FR 14420 revoked the effect of the antidumping duty order on all entries of the subject merchandise (ceiling fans from the PRC classifiable in subheading 8414.51.0030) entered, or withdrawn from warehouse, for consumption on or after June 5, 1991 (this order was revoked on the basis that the original petitioner made an affirmative statement of no interest constituting changed circumstances). Of the fifteen entries of this merchandise made, twelve were liquidated on July 8, 1994, and three were liquidated on October 21, 1994.

Customs issued an administrative message dated September 21, 1993 (No. 3264111), which instructed Customs personnel to liquidate all entries under A570-206, on the basis that the Department of Commerce had not received a request for an administrative review of the antidumping duty finding/order on the merchandise at issue. Subsequently, another administrative bulletin issued by Customs on April 3, 1995 (No. 5093111), terminated the suspension of liquidation of ceiling fans from the PRC and ordered liquidation of all suspended entries without regard to antidumping duties.

A letter from Encon Industries which accompanied the protest and was dated February 8, 1995, requested that the subject entries be reviewed and approved for reliquidation pursuant to the revocation of the antidumping duty order. Specifically, protestant claimed that the statement made in the September 21, 1993, internal Customs memorandum was erroneous in its facts and therefore materially incorrect, since the original petitioner, Lasko Metal Products, had indeed requested a review of the antidumping duty order.

On February 16 and 18, 1995, the protestant filed the protests under consideration and applied for further review. Further review was granted on August 5, 1995.

ISSUE:

1 ) Were the protests at issue timely filed?

LAW AND ANALYSIS:

A protest against the liquidation of an entry under 19 U. S.C. 1514 must be filed within 90 days after the date of liquidation (19 U.S.C. 1514(c)(3)). Protestant's request for reliquidation under 19 U.S.C. 1514 was untimely filed since more than 90 days had elapsed between the date of the liquidation and the filing of the protest. All of the protested entries were liquidated on either July 8, or October 21, 1994, both of which were more than 90 days before the protests were filed.

Although the protests under consideration are untimely as protests under 19 U.S.C. 1514, we note that the courts have treated untimely protests under 19 U. S.C. 1514 as seeking relief under 19 U SC. 1520(c), if such protests meet the requirements for claims under 19 U.S.C. 1520(c)(1). This provision allows Customs to reliquidate an entry to correct a clerical error, mistake of fact, or other inadvertence, not amounting to an error in the construction of the law, when certain conditions are met. The courts have frequently interpreted section 1520(c)(1), defining a "clerical error [as] a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention" (see, PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984), and cases cited therein). It has been held that a mistake of fact exists where a person understands the facts to be other than they are, whereas 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" (Hambro Automotive Corporation v. United States. 66 CCPA 113, 118, C.A.D. 1231, 603 F. 2d 850 (1970), quoted in Concentric Pumps, Ltd., v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986); see also, C.J Tower & Sons of Buffalo, Inc. v. United States, 6 8 Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp. 1395 (1972), affd, 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), and Universal Cooperatives, Inc. v. United States, 13 CIT 516, 518, 715 F. Supp. 1113 (1989)). Inadvertence has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake" (Occidental Oil & Gas Co. v. United States, 13 CIT 244, 246, (1989), quoting C.J Tower & Sons of Buffalo, Inc. v. United States, supra. 6 8 Cust. Ct. at 22. In Everflora Miami, Inc., v. United States, CIT Slip Op. 95-98, Customs Bulletin and Decisions of April 26, 1995, vol. 29, no. 17, p. 101,104, the Court stated that "[although plaintiff did not specifically claim that it was seeking relief under [section] 1520(c)(1), in compliance with ITT Corp. v. United States, 2 4 F. 3d 1384 (Fed. Cir. 1994)] the gravamen of plaintiffs claim is spelled out with sufficient particularity in the protests and attached documents to allow remedial action for mistake of fact or other inadvertence under [section]

Thus, the appropriate remedy in this case may be to treat the CF 19 as a notice of the alleged error, mistake of fact or inadvertence under 19 U. SC. 1520(c)(1), based on the information provided on the CF 19. In this instance, that is, the protest specifically cited 19 U.S.C. 1520(c), as compared with Everflora, in which that was not the case.

It is the obligation of the protestant, nonetheless, to identify the "error" which the protestant believes caused the allegedly erroneous liquidation. The conditions required to be met under 19 U.S.C. 1520(c)(1) 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. See, ITT Corp. v. United States, 2 4 F. 3d 1384, 1387 (Fed. Cir. 1994): "With regard to substantiation, [section] 1520(c)( 1 ) requires the importer to establish the asserted inadvertence through documentary evidence submitted to the appropriate customs officer, unless the inadvertence is manifest from the record." In the ITT Corp. case, the Court went on to note that such substantiating evidence may be submitted after the I year period provided for in section 1520(c)(1) and even at the time of trial de novo before the Court of International Trade (24 F. 3d at 1388-1389).

Basically, the protestant in this case claims that the entries should have been reliquidated because Customs made an administrative error, in that, through inadvertence or mistake of fact, failed to continue the suspension of liquidation of Encon's entries during the relevant periods.

Thus, although these protests must be DENIED as to the entries liquidated on July 8 and October 21, 1994, your office must decide the request for reliquidation made by Encon under 19 U.S.C. 1520(c)(1), and provide Encon with written notice of Customs action on that matter.

If you deny the request for reliquidation, you must notify Encon of its right to protest that denial under 19 U.S.C.

With this letter we are enclosing copies of all materials which you may not have with the protest file. These consist in large part of copies of the electronic directives issued by the Trade Compliance Division. You should coordinate with the Trade Compliance Division in acting on the 520(c)(1).

HOLDING:

You are hereby directed to DENY these protests in full. You must decide, however, the request for reliquidation made by Encon Industries, Inc., under 19 U. S.C. 1520(c)(1). If that request for reliquidation is denied, you must notify Encon of its right to protest that denial under 19 U.S.C. 1514(a)(7).

In accordance with Section 3A(11)(b) of Customs Directive 099-3550-065 dated August 4, 1993 (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, under the Freedom of Information Act, and through other public access channels.

Sincerely,
John Durant, Director
Tariff Classification Appeals Division

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