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HQ 229440





May 8, 2002

LIQ- 9-01: RR:CR:DR 229440 LLB/MK

Category: LIQUIDATION

VVP America, Inc.
C/O International Trade & Co.
Attn: Ms. Pat Perez
309 NAFTA Blvd.
Laredo, Texas 78045

RE: Application for Further Review of Protest No. 2304-01-100307; Claim for Preferential Tariff Treatment under NAFTA; Late Submission of Certificate of Origin; 19 U.S.C. § 1514; 19 U.S.C. § 1520(c)(1); 19 C.F.R. § 174.24

Dear Ms. Perez:

The above-referenced protest has been forwarded to this office for further review. We have considered the points raised by the protestant and your office. Our decision follows.

FACTS

On May 27, 2000 laminated windshields for automotive use (MX7007.21.10010) were imported from Mexico to the United States by the entry number D58-xxxxx101by VVP America, Inc.

On July 27, 2000 a request for information on Customs Form CF 28 was sent to VVP America, Inc. at 965 Ridge Lake Blvd., Memphis, TN 38119 requesting the NAFTA Certificate of Origin (C/O) for the laminated windshields. Customs requested a response within thirty days of the date of notice thus providing VVP America, Inc. with a response deadline of August 27, 2000.

On October 13, 2000 Customs, having not timely received the certificates of origin, liquidated the entries without the NAFTA preferential treatment.

On February 16, 2001, 127 days after liquidation, VVP America, Inc. petitioned for a reliquidation of entry, asserting that the failure to provide the proper certificate of origin timely was due to an attempt to acquire the certificate from the wrong division of the importer.

On February 22, 2001 Customs, as shown by Customs’ ACS record in the protest module, denied the protestant’s petition for the reliquidation (2304-01-200006).

On September 4, 2001, over six months after Customs denied its petition for reliquidation, VVP America, Inc. filed protest number 2304-01-100307 claiming that when Customs sent the Request for Information (CF 28) to the broker, the broker erroneously contacted the wrong division of the company in attempting to obtain the C/O. The broker was therefore were unable to submit the C/O within the required time. The importer claims that the broker’s having contacted the wrong division contributed to the delayed submission of the necessary information for the qualification of NAFTA privileges.

ISSUE

Whether protestant’s failure to provide Customs with requested NAFTA Certificates of Origin was the result of a clerical error

LAW & ANALYSIS

Initially, we note the protestant’s request for reliquidation pursuant to § 1520(c)(1), was timely inasmuch as it was filed less than one year from the October 13, 2001 liquidation date; however, the protest filed on September 4, 2001, which protests the denial of protestant’s request for liquidation, is untimely insofar as it was filed more than 90 days after February 22, 2001, denial of reliquidation. See § 1514(c)(3). Thus, this protest should be denied as untimely. As discussed below, even if the protest were timely, it would be denied for failure to meet the requirements of 19 U.S.C. § 1520(c)(1).

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. 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. The relief provided for in 19 U.S.C. §1520(c)(1) is not an alternative to the relief provided for in the form of protests under 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. Supp. 1326 (1980); see also, Computime, Inc. v. United States, 555, 622 F. Supp. 1083 (1985); Concentric Pumps, Ltd. v. United States, 643 F. Supp. 623 (1986).

The protestant argues that its failure to submit the certificate of origin was due to clerical error because the broker sent the information request to the wrong division of the company. The protestant asserts that the delay resulted in the liquidation of the entry without the NAFTA preferential treatment. Although the foregoing scenario involves a clerical error, it is more akin to a mistake of fact. "[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).

In Executone, Customs issued Notices of Action indicating that because no documentation had been furnished with the entry to support duty-free entry under the Caribbean Basin Economic Recovery Act, Customs liquidated the entries in question with additional duties. 96 F.3d at 1384. Although the claimant had requested its broker to submit Form A to Customs several times, the broker had failed to do so. Id. A protest had not been filed within 90 days after notice of liquidation as required by 19 U.S.C. §1514. Id. Subsequently, Form A was submitted to Customs with a request to reliquidate the entries under 19 U.S.C. §1520(c)(1). Id. Customs denied the protest because "[n]o supporting documentation other than Form A [was] submitted." Id. The court held that:

In order to protect the viability of protest under 19 U.S.C. § 1514, . . . in the case of missing documentation required by statute or regulation, the importer must prove more than that it can produce proper documentation at the time of trial . At the very least, the importer must prove that, but for a mistake of fact or other inadvertance, proper documentation would have been filed at the time required by law. Simple failure of the broker to file proper documentation does not satisfy § 1520(c)(1).

Id. at 1388-89. The court found that the evidence provided, inter alia, the Form A Customs originally requested, nor its conclusory allegations that “inadvertence is hard to document,” did not show that Executone’s failure to submit the Form A was due to mistake of fact or inadvertence. Id. at 1389-90. Rather, the evidence showed that Executone, by repeating its request to its broker, clearly “knew the forms had not yet been filed, yet failed to act.” Id.

Similar to the facts in Executone, the request for information on the CF 28, dated July 27, 2000, informed the protestant of the need to submit the certificate of origin in order to claim preference. However, the protestant failed to do so based on an unsupported allegation that the protestant had not been informed properly by their broker. As stated above, a mistake of fact must be manifest from the record or established by documentary evidence. Phillips Petroleum Company, 54 CCPA at 11. The protestant asserts that the merchandise did qualify for duty free privileges under the NAFTA agreement at the time of the claim and that it was in possession of the CF434 NAFTA certificates of origin for the goods imported. The protestant further asserts that the broker erroneously contacted the wrong division of V.V.P. America at the time the CF 28 was issued and that caused the delayed submission of the certificate. The CIT has ruled that mere assertions by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official’s decision. Bar Bea Truck Leasing Co., Inc. V. United States, 5 CIT 124, 126 (1983). At the time of liquidation, Customs had a claim for preference, had attempted to verify the validity of that claim by requesting the certificate of origin, and had received no response to that request. Consequently, Customs, not having the requested certificate, properly liquidated the claim without preference.

Also similar to Executone, rather than provide support for its argument that the failure to provide the records was due to inadvertance or mistake of fact, the protestant provides the certificate that was originally requested to support the protestant’s claim for duty preference. Insofar as it is not manifest from the record nor supported by documentary evidence, that its failure to submit the documents to obtain the duty preference was due to mistake of fact, pursuant to Executone, relief under § 1520(c)(1) is not available to the protestant.

In Occidental Oil and Gas Co. v. United States, 13 CIT 244, 248 (1989), the court found that protestant entered merchandise in June 1981 which was not liquidated until May 1983. For the two years prior to liquidation, the protestant was aware that certain documents were missing and that they had been requested by Customs. The court also found that there was no evidence that the protestant attempted to obtain the necessary documentation in a timely manner. The court held that, “[u]nder the circumstances, the delay by plaintiff cannot be described as a mere ‘inadvertence’. It is clear, however, that regardless of whether plaintiff was guilty of negligent inaction, it has not shown error that is remediable under 19 U.S.C. § 1520(c)(1).” The court further held that based on the information it had at the time, Customs properly classified the merchandise and that the protestant’s proper course of action would have been to challenge the classification of the merchandise through a section 514 protest rather than petition the reliquidation under 19 U.S.C. § 1520(c)(1).

Here, the protestant filed the subject entry on May 27, 2000. A request for information was made on July 27, 2000, which informed the protestant that it would have 30 days to respond or Customs would liquidate the entry at the alternate classification. Customs did not receive a response from the protestant, and accordingly, on October 13, 2000, liquidated the entry at the alternate classification. The protestant asserts that it did not respond timely to this request for information because the broker sent the request to the wrong division. However, the protestant has provided no evidence in support of that assertion. Consequently, even if the time requirement of 19 U.S.C. § 1514 was met, this protest would be denied for failure to meet the terms of 19 U.S.C. § 1520(c)(1).

HOLDING

The protest should be denied as untimely. In addition, even if the protest was timely, the failure of the protestant to provide timely to Customs the requested NAFTA certificate of origin has not been shown to be an error which relief may be granted under 19 U.S.C.§ 1520(c)(1). Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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