HQ 227442 - Protest and Application for Further Review No. 1512-97-100062; clerical error, mistake of fact, or other inadvertence; 19 U.S.C. ?1520(c)(1); 19 U.S.C. ?1514; sufficiency of evidence - United States International Trade Commision Rulings

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HQ 227442

June 26, 1998

LIQ-9-01 RR:CR:DR 227442 CB

CATEGORY: ENTRY LIQUIDATION

Port Director of Customs
U.S. Customs Service
1901 Cross Beam Drive
Charlotte, NC 28217
ATTN.: Director, Trade Compliance

RE: Protest and Application for Further Review No. 1512-97-100062; clerical error, mistake of fact, or other inadvertence; 19 U.S.C. ?1520(c)(1); 19 U.S.C. ?1514; sufficiency of evidence

Dear Sir or Madame:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided and the arguments made by the Protestant, as well as Customs records relating to this matter. Our decision follows.

FACTS:

The subject protest covers two entries with an entry date of March 15, 1995. The entries were liquidated on June 30, 1995. According to protestant's submission dated September 23, 1997, at about the time these entries were being prepared in Charlotte, protestant was also clearing two entries for the same product in Los Angeles. Both of these entries included the Special Preference Indicator "L". We assume that those entries were prepared by a different clerk. According to protestant, the clerk in the Charlotte office had never handled this particular product before. In such cases, it was protestant's procedure for an entry preparer to verify the classification of a product by reviewing the electronic product database. Absent a record in the product database, an entry preparer should review prior shipments of the same product for the same consignee. Protestant asserts that, given the complex nature of chemicals and the difficulty in properly classifying them, an entry preparer would not attempt classification without consulting available records.

Per protestant, notations on the file folder indicate that the clerk did in fact review the available records (i.e., the Los Angeles entries), thereby becoming aware of the correct classification. According to protestant, it is clear from the record that the clerk was aware of the correct classification of the product, as demonstrated by the Los Angeles entries. Protestant maintains that the clerk simply failed to follow through when notating the
commercial invoice and then compounded the error when keypunching the classification into the computer system.

On March 14, 1996, according to protestant, during a routine review of entries protestant's National Account Manager discovered the error. A section 520(c) request for reliquidation was filed on April 5, 1996. On August 9, 1996, your office denied the request. On September 5, 1996, protestant sent the responsible Import Specialist a letter requesting review and reconsideration of that denial. Protestant also sent a follow-up letter on December 20, 1996. The subject protest was filed on January 10, 1997.

Protestant has been afforded numerous opportunities to fully document its claimed mistake of fact. Specifically, by way of a telephone call on December 4, 1997, the protestant was advised what evidence was required. This call was followed-up with another telephone call to the same individual on February 3, 1998. During this second call, protestant's representative again indicated that she would be making an additional submission within that week. There was a final telephone call on May 6, 1998 from this office to protestant's representative. Once again, this individual indicated that she would be making an additional submission. During this final telephone call she was again advised of the discrepancies contained in the record. To date, no additional submission has been made. Thus, we are proceeding to rule on the record before this office.

ISSUE:

May relief be granted under 19 U.S.C. ?1520(c)(1) in 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, 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 and adverse to the importer, when certain conditions are met. Section 1520(c)(1) has frequently been interpreted by the Courts. It has been stated that "[a] clerical error is 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 stated that: "[M]istakes of fact occur in instances where either (1) the facts exist, but are unknown, or (2) the facts do not exist as they are believed to [and] [m]istakes of law, on the other hand, occur where the facts are known, but their legal consequences are not known or are believed to be different than they really are" (Executone Information Systems v. United States, 96 F.3d 1383, 1386 (Fed. Cir. 1996) (emphasis in original), citing Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F.2d 850 (1979); see also, Degussa Canada Ltd. v. United States, 87 F.3d 1301 (Fed. Cir. 1996)). Inadvertence has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake" (Aviall of Texas, Inc. v. United States, 70 F.3d 1248, 1249 (Fed. Cir. 1995), citing Hambro, supra).

The conditions required to be met under 19 U.S.C. other inadvertence must e 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. The relief provided for in 19 U.S.C. ?1520(c)(1) is not an alternative to the relief provided for in 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, 496 F. Sup.
1326 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985).

Protestant claims that, despite having knowledge of the correct classification, its employee failed to annotate the entry with the Special Preference Indicator "L", thereby failing to claim duty free status. Under 19 U.S.C. inadvertence not amounting to an error in the constructions of a law must be "manifest from the record or established by documentary evidence." In this case, the alleged mistake is not manifest from the record. There is no documentary evidence on 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. This lack of evidence was brought to protestant's attention by this office and protestant was afforded ample opportunity to substantiate its claim. Presently, there is nothing in the protest file to disprove that the clerk made a conscious decision to leave out the Special Preference Indicator. Indeed, by protestant's own assertion, the notations in the file pertaining to the subject entries show that the clerk was aware of the correct classification after reviewing the records for the Los Angeles entries. We note that copies of said notations, referenced to in protestant's additional submission of September 23, 1997, were never submitted by protestant.

Further, we note that the Courts have held that the essence of clerical error is the intent of the person preparing the document in which the error was allegedly made and where there is no evidence from that person as to his or her intent, the evidence is insufficient to sustain a claim of clerical error (see, Pacific Trading Co. v. United States, 20 Cust.Ct. 170, C.D. 1103 (1948); Francisco Castelazo v. United States, 24 Cust. Ct. 294, C.D. 1250 (1950); see also, PPG Industries, supra. In the instant case, there is no affidavit from the clerk 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). Protestant asserts that the error resulted from "oversight and not the exercise of judgment that caused the SPI to be omitted." However, we cannot simply accept protestant's assertions without any corroboration (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).

As to protestant's allegation (in the December 20, 1996 letter) that Customs offices in other districts approved a request for reliquidation under 19 U.S.C. ?1520(c)(1) in identical circumstances, we are unable to comment on that allegation without reviewing that case and the materials associated with it. Even if this is true, we do not accept the proposition that a decision by a Customs port director governs all similar requests for reliquidation under 19 U.S.C.

HOLDING:

Relief may NOT be granted under 19 U.S.C. ?1520(c)(1) for the reasons given in the LAW AND ANALYSIS portion of this ruling. The protest is DENIED.

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, with the Customs Form 19, 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, Freedom of Information Act, and other public access channels.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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