HQ 223645: Protest and application for further review no. 3801-1-101099; request for reliquidation under 19 U.S.C. 1520(c)(1);protest of denial of request for reliquidation under 19 U.S.C.1514(a)(7)

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 223645

                        February 19, 1992

LIQ-1-09 CO:R:C:E 223645 C

CATEGORY:  Entry/Liquidation

Nicholas R. Devine
Assistant District Director of Customs
Office of Commercial Operations
U.S. Customs Service
Detroit, MI  48266

RE:  Protest and application for further review no. 3801-1-
101099; request for reliquidation under 19 U.S.C. 1520(c)(1);
protest of denial of request for reliquidation under 19 U.S.C.
1514(a)(7)

Dear Mr. Devine:

     This responds to the referenced protest and application for
further review which you submitted by memorandum of December 19,
1991 (PRO-1-CO:CT DA; P1101099/TXTFRISC).  The protest objects to
Customs denial of a petition for reliquidation under 19 U.S.C.
1520(c)(1).  We have reviewed the record and our decision
follows.

FACTS:

     The facts, as we understand them, are as follows: 
PROTESTANT, an importer of automotive parts, submitted to Customs
a request for approval of blanket certifications for specified
auto parts that are entitled to duty-free entry under the
Automotive Products Trade Act of 1965 (APTA or the Act).  The
certifications are necessary to obtain duty-free treatment under
the Act.  (See General Note 3(c)(iii) of the Harmonized Tariff
Schedule of the United States and section 10.84 of the Customs
Regulations (19 C.F.R. 10.84).) The letter of request is dated
April 10, 1990.  Prior to approval of the certifications,
merchandise was entered on May 7 and May 21, 1990, under dutiable
tariff provisions.  The certifications were then approved on May
24, 1990, and evidence of such approval was forwarded to
PROTESTANT.  In August 1990, the entries were liquidated "no
change" at the dutiable rate.  More than 90 days after, but
within one year of, the date of liquidation, PROTESTANT filed a
request for reliquidation of the entries under 19 U.S.C.
1520(c)(1).  Customs denied this request on the ground that
PROTESTANT had "not demonstrated a clerical error, mistake of
fact, or other inadvertence" correctable under 19 U.S.C.
1520(c)(1).  PROTESTANT then filed the instant protest and
application for further review, alleging that an error
correctable under the statute did in fact occur and Customs
denial of the section 1520(c)(1) request was in error. 
Specifically, PROTESTANT asserts that a correctable error
occurred in Customs liquidation of the entries at a dutiable rate
after approval of the certifications.

ISSUE:

     On the facts set forth above, has an error correctable under
19 U.S.C. 1520(c)(1) occurred?

LAW AND ANALYSIS:

     The reliquidation provision of 19 U.S.C. 1520(c)(1) is not
an alternative to the protest procedure of 19 U.S.C. 1514.  It
applies only to the limited circumstances described therein. 
Phillips Petroleum Company v. United States, 55 CCPA 7, 11,
C.A.D. 893 (1966).  An entry can be reliquidated, notwithstanding
that a protest has not been timely filed, to correct a clerical
error, mistake of fact, or other inadvertence not amounting to an
error in the construction of a law.  The burden is on the
petitioner to support its request for reliquidation by bringing
to Customs attention, within one year of the date of liquidation,
the nature of the alleged error, either as it appears from the
record or by submitting documentary evidence.  19 U.S.C.
1520(c)(1).

     The issue under the instant protest is whether or not
PROTESTANT's 1520(c)(1) request was improperly denied.  We
believe that the reliquidation request was properly denied for
failure on the part of PROTESTANT to allege facts that would
indicate that some kind of correctable error occurred causing an
erroneous liquidation.

     PROTESTANT asserts that the correctable error was Customs
dutiable liquidation of the entries in question in August 1990,
when Customs had approved a blanket certification for duty-free
APTA entries on May 24, 1990.  To understand that such
liquidation is not an error on Customs part, it is necessary to
understand the entry process for APTA merchandise in place at
Detroit.

     First, not all automotive merchandise destined to a bona
fide motor vehicle manufacturer in the United States is entitled
to duty-free treatment under the APTA.  Only such merchandise
that is intended for use as original equipment in the manufacture
in the United States of a motor vehicle is entitled to the duty
exemption.  (See General Note 3(c)(iii) of the HTSUS.)  Because
some automotive merchandise is not so intended at the time of
entry, it is entered at a dutiable rate by the importer.  Customs
accepts such entries as dutiable and does not check with the
importer to determine whether or not the exemption is desired. 
This would be unworkable.  The burden is on the importer to enter
qualifying merchandise under the duty-free provision by so
specifying.

     Where merchandise is intended for the qualifying use, and
thus duty-free treatment, it can be entered with a claim for
duty-free treatment whether or not there is an approved
certificate.  Where there is no certificate, Customs will request
the submission of a certificate, whereupon the importer (or
broker) can take steps to obtain approval of a certification. 
Where a request for approval of a certification has been
submitted but not acted upon by Customs, the importer (or broker)
will note on the invoice that a request for certification has
been submitted and the date submitted.  This alerts Customs to
the fact that a request has been filed and Customs will then
consider the request.  Where the request for a certification has
been approved, the importer (or broker) will note that fact on
the invoice and the date of approval.  Usually, this will be
enough to obtain a duty-free liquidation of the entry. 
Occasionally, the APTA file will be checked to verify that there
is an approved certification on file for the entered merchandise.

     On the facts of the instant case, the PROTESTANT, through
its broker, entered the merchandise at a dutiable rate.  Customs
accepted the entries at face value - that is, as dutiable. 
Consequently, under the ACS entry processing system (Automated
Commercial Systems), a 90 day automatic liquidation date was set,
and the entries were liquidated as dutiable in August 1990. 
Since the request for certification approval was made on April
10, 1990, prior to the filing of the instant entries on May 7 and
21, 1990, the PROTESTANT (through its broker) should have noted
such on the invoice.  There was no such notation, and the
invoices failed to alert Customs to the fact that a request had
been submitted.  Customs then processed the entries as ordinary
dutiable entries.

     An importer's recourse in the described situation is to file
a protest under 19 U.S.C. 1514 within 90 days of the liquidation. 
Unless the importer can identify a clerical error, mistake of
fact, or other inadvertence, resort to 19 U.S.C. 1520(c)(1) will
be ineffective to obtain reliquidation.  On the facts here, we do
not recognize any such mistake, nor has PROTESTANT identified
one.  Regarding the fact that PROTESTANT (through its broker)
initially filed the entries in question at a dutiable rate,
PROTESTANT has not claimed that this act was correctable error,
nor, on the facts here, do we believe it to be correctable error. 
There is no claim by PROTESTANT, nor any indication in the record
to suggest, that there was a misunderstanding as to the nature of
the entered merchandise.  Also, PROTESTANT was aware at all times
of the duty exemption provided by the APTA.  NEC Electronics
U.S.A., Inc. v. United States, 13 CIT 214 (1989).

     In summary, we conclude that the remedy PROTESTANT should
have pursued is reliquidation under the protest procedure of 19
U.S.C. 1514.  PROTESTANT however failed to file a timely protest. 
Again, reliquidation under section 1520(c)(1) is not a simple
alternative for importers who fail to meet the time requirements
of the protest procedure.

HOLDING:

     Customs properly denied PROTESTANT's request for
reliquidation under 19 U.S.C. 1520(c)(1), since PROTESTANT failed
to allege facts that demonstrate correctable error and no such
facts appear on the record.

     Based on the foregoing, you are instructed to deny the
protest.  A copy of this decision should be attached to the Form
19, Notice of Action, to be sent to the PROTESTANT.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division