HQ 224088: Protest and application for further review no. 1303-91-100346; denial of request for reliquidation; sufficiency ofallegations; clerical error; protest not timely filed; 19 U.S.C.1520(c)(1); 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 224088

                         October 5, 1992

LIQ-9-01 CO:R:C:E 224088 C

CATEGORY:  Liquidation

District Director of Customs
U.S. Customs Service
40 South Gay Street
Baltimore, MD  21202

RE:  Protest and application for further review no. 1303-91-
100346; denial of request for reliquidation; sufficiency of
allegations; clerical error; protest not timely filed; 19 U.S.C.
1520(c)(1); 19 U.S.C. 1514(a)(7)

Dear Sir:

     This responds to the referenced protest and application for
further review.  We have examined the record, and our decision
follows.

FACTS:

     The relevant facts, as we understand them from review of the
record, follow.  PROTESTANT imported merchandise and had it
admitted into a foreign trade zone.  The merchandise was removed
from the zone on two separate dates and under two separate
consumption entries.  The first entry occurred on February 22,
1990; the second occurred on April 10, 1990.  With respect to the
second entry, Customs issued a rate advance, CF 29, dated May 1,
1990, which proposed an increase in duties for the reasons that
the entered value was incorrect (due to an erroneous rate of
exchange in the calculation) and the proper classification of the
merchandise was subheading 9009.90.0090, HTSUS.  PROTESTANT was
notified that the entry would be liquidated accordingly unless
Customs received a response within 20 days of the date of the CF
29.  PROTESTANT did not respond, and the entry was liquidated on
September 28, 1990.

     By letter dated November 30, 1990, PROTESTANT's broker filed
a request for reliquidation under the authority of 19 U.S.C.
1520(c)(1), referencing only the second entry.  The letter
identified three errors, describing them as clerical errors that
could be corrected under the statute: 1) the rate of exchange
should have been .006838 (as Customs had indicated in its rate
advance); 2) the entered value should have been 11,140,000 yen;
and 3) the classification for some of the merchandise had been
omitted from the entry documents.  On July 11, 1991, Customs
denied the request for reliquidation based on the fact that all
three claimed errors had been addressed by Customs in its rate
advance and acted upon at liquidation.  Since the request for
reliquidation had not contested the points set forth in the rate
advance, nor alleged additional information to suggest that the
liquidation was incorrect, it was denied.

     The protest and application for further review (CF 19) was
filed on October 9, 1991.  It identifies only the second entry as
the subject of the protest (in item 5).  (While the Protest and
Summons Information Report (CF 6445A) identifies both the first
and second entries in item 4, this protest covers only the second
entry.)  The protest asserts three points: 1) the quantity of
photoreceptive drums actually entered under the second entry was
less than the number calculated in the liquidation; 2) the
classification for the starter kit was incorrect based on Customs
failure to apply the principle of "entireties"; and 3) certain
non-dutiable charges should have been deducted from the value of
the merchandise as calculated in the liquidation.

ISSUE:

     On the above facts, did Customs err in denying the
PROTESTANT's request for reliquidation under 19 U.S.C.
1520(c)(1)? 

LAW AND ANALYSIS:

     Under 19 U.S.C. 1520(c)(1), a liquidation that is otherwise
final can be reliquidated to correct a clerical error, mistake of
fact, or other inadvertence if certain conditions are met:  The
alleged error must be adverse to the importer, manifest from the
record or established by documentary evidence, and brought to
Customs attention within one year of the date of liquidation. 
This form of relief is not to be confused with the protest
procedure of 19 U.S.C. 1514, which provides an importer the
opportunity to contest certain decisions by Customs officers if
the importer notifies the appropriate Customs officer within 90
days of the liquidation or decision.  The protest procedure
offers a broad range of relief.  The reliquidation procedure is
limited to clerical errors, mistakes of fact, or other
inadvertence; it is not a simple alternative to the protest
procedure.  Phillips Petroleum Company v. United States, 54 CCPA
7, C.A.D. 893 (1966); Godchaux-Henderson Sugar Co., Inc. v.
United States, 85 Cust. Ct. 68, C.D. 4874 (1980); Computime, Inc.
v. United States, 9 CIT 553, 622 F. Supp. 1083 (1985); and
Concentric Pumps, Ltd. v. United States, 10 CIT 505, 643 F. Supp.
623 (1986).

     Under 19 U.S.C. 1514(a)(7), an importer can protest, within
90 days of the decision, a Customs officer's denial of a request
for reliquidation.  Such a protest is a challenge to the denial;
thus, the issue to be decided in the protest is whether the
decision to deny the reliquidation request was correct.  In order
to determine this issue, the substance of the request for
reliquidation, the substance of the decision to deny, and the
information, or evidence, upon which the decision was based must
be examined.  Only the errors alleged at the time the
reliquidation request was made are considered.  Any additional
reasons put forward in the protest are beyond the scope of
review.

     PROTESTANT's (timely filed) request for reliquidation  
identified three alleged clerical errors.  PROTESTANT failed to
explain why the alleged errors were, in fact, clerical errors
correctable under the statute.  As stated above, in order to
qualify for relief under 19 U.S.C. 1520(c)(1), the clerical
error, mistake of fact, or other inadvertence must be manifest
from the record or established by documentary evidence.  As the
United States Court of International Trade stated in PPG
Industries, Inc. v. United States, 4 CIT 143 (1982) (quoting in
part from the United States Customs Court's opinion in Hambro
Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, C.D.
4761, 458 F. Supp. 1220, 1222 (1978)):

          . . . it is incumbent on the plaintiff to
          show by sufficient evidence the nature of the
          mistake of fact [or clerical error]. The
          burden and duty is on the plaintiff to inform
          the appropriate Customs official of the
          alleged mistake with "sufficient
          particularity to allow remedial action." [Id.
          at 147-148; see also, United States v.
          Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949),
          where the court stated that the
          "determination of issues in customs
          litigation may not be based on supposition."]

     The foregoing means that a petitioner under 19 U.S.C.
1520(c)(1) must identify the errors and explain with
particularity how they constitute mistake of fact or clerical
error.  It is not enough to simply allege specific errors without
explaining how such errors constitute correctable error under the
statute.  For example, it would not be enough to simply inform
Customs that the classification or value assessment was
incorrect; an explanation of the nature of the mistake that led
to the incorrect classification or value would be necessary. 
PROTESTANT's request for reliquidation failed to explain how the
alleged errors were in fact clerical errors correctable under the
statute.

     Further, and of greater significance, the letter from
PROTESTANT's broker requesting reliquidation appeared simply to
repeat what Customs had pointed out in its rate advance (CF 29). 
Consequently, Customs, by the time it received PROTESTANT's
1520(c)(1) request, had already corrected the errors alleged in
it.  Since the request did not contest the points raised by
Customs in the rate advance, and since no new information was
submitted or additional errors alleged, Customs denied the
request.  The denial was thus proper and correct.  PROTESTANT, in
its June, 22, 1992, letter (which you submitted with this
protest), appears to recognize that its broker failed to properly
identify and fully explain the nature of the alleged mistakes in
this case.  (See page 2, third full paragraph, of that letter.)

     Regarding the more specific errors alleged in the instant
protest, had these been included in the request for
reliquidation, Customs could have considered them and acted upon
them.  They are different from the points raised in the rate
advance, and they are set forth with sufficient particularity to
inform the Customs officer of their nature.  However, since they
were not raised in the 1520(c)(1) request, they cannot be
considered now in this protest.  Moreover, the protest, as to
these issues, is untimely.

     Based on the foregoing, we conclude that Customs did not err
in denying PROTESTANT's request for reliquidation under 19 U.S.C.
1520(c)(1).  In addition, the errors alleged in the protest have
been brought to Customs attention for the first time in this
protest.  Thus, these issues have been raised too late to be
considered in either a protest or a request for reliquidation.
The protest should thus be denied for two reasons: 1) the denial
of the request for reliquidation was proper and 2) the protest
respecting the issues raised therein was not filed timely.

HOLDING:

     On the facts of this case, Customs did not err in denying
the request for reliquidation under 19 U.S.C. 1520(c)(1).  The
errors alleged in the request had already been identified by
Customs in a rate advance (CF 29) issued to PROTESTANT and were
corrected by Customs in the ensuing liquidation.  The errors
alleged in this protest have not been brought to the attention of
the appropriate Customs officer in time to be corrected under
either a protest or a request for reliquidation.  The protest is
DENIED.  A copy of this decision should be attached to the
Customs Form 19 to be sent to PROTESTANT as notice of this
action.

                               Sincerely,




                               John Durant, Director