HQ 225095: Protest 2304-93-100444; posting of the bulletin notice ofliquidation; Customs physical control over bulletin notice ofliquidation; 19 CFR 159.9; Courtesy notice of liquidation; 19U.S.C. 1514(a); 19 U.S.C. 1520(c)(1); Godchaux-Henderson SugarCo., v. U.S.; HQ 224385; Failure to submit requestedmanufacturer's affidavit is not clerical error, mistake of factor inadvertence correctable pursuant to section 1520(c)(1);Cavazos v. U.S.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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. 
                               -2-

     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 
                               -3-

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 

                               -4-

     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
1520(c)(1).


                               -5-

     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
1520(c)(1).  

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