HQ 224256: Application for Further Review of Protest No: 1001-1-108295; Denial of 19 U.S.C. 1520(c)(1) Petition

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 224256

                       April 1, 1993

LIQ-9-01-CO:R:C:E 224256 SLR

CATEGORY:  Liquidation

Regional Commissioner of Customs
6 World Trade Center
New York, NY  10048

RE:  Application for Further Review of Protest No: 1001-1-108295;
     Denial of 19 U.S.C. 1520(c)(1) Petition

Dear Sir:

     The above-referenced protest was forwarded to our office for
further review.  We have examined its contents and our decision
follows.

FACTS:

     On September 21, 1989, certain merchandise was entered 
duty-free under the Generalized System of Preferences.  On 
April 5, 1990, Customs issued a CF 29 advising the protestant
that a rate advance would be assessed unless an original Form A
was submitted.  On April 11, 1990, the protestant forwarded the
original Form A to its broker for submission to Customs.  On 
May 4, 1990, Customs liquidated the subject entry "no change." 
On July 19, 1990, the entry package arrived at the Regional
Residual Liquidation Section.  The package contained photo copies
of the missing Form A, but no originals.  Also included was a
note from the import specialist requesting that the entry be
reliquidated under 19 U.S.C. 1501.  On July 23, 1990, the 
subject entry was reliquidated at an increased rate, off-line,
and bulletin notice was posted accordingly.  On August 10, 1990,
a bill for increased duties was issued.  On that same day,
Customs verified the billing for accuracy against the on-line
bulletin, red-lined the entry on the on-line bulletin, and made
the entry available for review. 

     On March 7, 1991, the protestant filed a petition for
reliquidation of the entry under 19 U.S.C. 1520(c)(1),
claiming that the failure to submit the original Form A prior 
to reliquidation was due to clerical error, mistake of fact, or
other inadvertence.  A duplicate original Form A was presented to
Customs at this time.  On August 29, 1991, your office denied 
the petition.  On November 25, 1991, the instant protest and
application for further review was filed against your refusal 
to reliquidate the entry under 19 U.S.C. 1520(c)(1).
                              -2-

     The protestant maintains that the failure on the part of 
its broker to file the original Form A prior to reliquidation
constitutes inadvertence correctable under 1520(c)(1).  The
protestant's broker believes that an original Form A was
submitted with the subject entry; however, the protestant admits
that there is no documentation evidencing such submission.  

     The protestant posits that as the subject entry was
liquidated "no change," perhaps Customs did receive the 
original Form A but misplaced it after liquidation.
The protestant alleges clerical error or mistake of fact 
on the part of Customs in misplacing the Form A.

     The protestant maintains that other mistakes of fact and
inadvertences exist in this case.  The protestant claims that the
subject entry was not properly reliquidated on July 21, 1990.  It
maintains that the bulletin notice for the off-line reliquidation
was not properly posted in that it was not made accessible to the
public.  It also maintains that the bulletin notice was deficient
in that it did not include the kind of entry and entry date. 
Finally, since the entry was not made available for review until
August 10, 1990, the protestant argues that reliquidation was
tolled until that date and consequently was untimely 
(98 days).

ISSUE:

     Whether Customs properly denied 1520(c)(1) relief in this
case.

LAW AND ANALYSIS:

     Section 514, Tariff Act of 1930, as amended (19 U.S.C.
1514), sets forth the proper procedure for an importer to protest
the classification and appraisal of merchandise when it believes
the Customs Service has misinterpreted the applicable law.  
A protest must be filed within ninety days after notice of
liquidation or reliquidation.  Otherwise, the tariff treatment 
of merchandise is final and conclusive.

     Section 520, Tariff Act of 1930, as amended (19 U.S.C.
1520(c)(1)), is an exception to the finality of section 514.  
An entry may be reliquidated to correct a clerical error, mistake
of fact, or other inadvertence if it does not amount to an error
in the construction of the law; is adverse to the importer; and
is manifest from the record or established by documentary
evidence.  Section 520(c)(1) is not an alternative to the normal
liquidation-protest method of obtaining review, but rather 
affords limited relief where an unnoticed or unintentional 
error has been committed.  Computime, Inc. v. United States,
9 CIT 554, 556, 622 F. Supp. 1083, 1085 (1985).

                              -3-

     Mistakes of fact occur when a person believes the facts to
be other than what they really are and takes action based on that
erroneous belief.  Inadvertence connotes inattention, oversight,
negligence, or lack of care.  Clerical error occurs when a person
intend to do one thing but does something else, including
mistakes in arithmetic and the failure to associate all the
papers in a record under consideration.  T.D. 54848.  These
errors are not mutually exclusive.  However, errors in the
construction of law are not correctable under 1520(c)(1).

     The protestant maintains that the failure on the part of 
its broker to file the original Form A prior to reliquidation
constitutes inadvertence correctable under 1520(c)(1).

     The Customs Service has previously addressed the issue 
of an importer's failure to provide additional information.  
In C.S.D. 80-250, Customs determined that the failure of the
importer to respond to Customs request for additional information
amounted to negligent inaction and, therefore, did not fall
within the meaning of 1520(c)(1).  This conclusion has been
upheld by the courts.  In Occidental Oil & Gas Co. v. United
States, 23 Cust. B. & Dec. No. 17, p. 40, Slip Op. 89-40 (CIT
1989), the court held that an importer's delay in forwarding
additional information is not an inadvertence or mistake within
the scope of 1520(c)(1).  The court found that the record showed
that the appropriate documents supporting the claim had not been
supplied and, therefore, the Customs officer had made a legal
determination as to the classification.  We see no reason to
reach a different conclusion in the instant case.  The protestant
was given an opportunity to supply additional information but
failed to do so.  The protestant had ninety days to protest the
reliquidation under 19 U.S.C. 1514.

     The protestant posits that as the subject entry was
liquidated "no change," perhaps Customs received the original
Form A but misplaced it after liquidating the entry.  It alleges
clerical error or mistake of fact on the part of Customs in
misplacing the Form A.

     There is absolutely no evidence that the protestant's broker
submitted the original Form A.  Customs liquidated the subject
entry "no change," discovered it did not have an original Form A
on file for the entry, and timely reliquidated the entry under 
19 U.S.C. 1501.  Customs reliquidated the entry based on the best
information available to it.  Customs did not make a clerical
error or mistake of fact within the meaning of 19 U.S.C.
1520(c)(1).

     The protestant maintains that Customs committed various
mistakes of fact and inadvertences when reliquidating the 
subject entry.  It maintains that the bulletin notice for 
off-line reliquidation was not properly posted in that it 
                              -4-

was not accessible to the public; that the bulletin notice was
deficient in that it did not include the kind of entry and entry
date; and that since the entry was not made available for review
until August 10, 1990, the reliquidation was tolled until that
date and consequently was untimely (98 days).
          
     Each of these determinations involved an application of 
the Customs regulations.  Consequently, if any mistake of fact 
or inadvertence had occurred, it would have amounted to an error
in the construction of the law unremediable under 19 U.S.C.
1520(c)(1).  The protestant should have raised these objections
in a timely filed protest against the reliquidation under 19
U.S.C. 1514.

HOLDING:

     Customs properly denied 1520(c)(1) relief in this case 
as the protestant is unable to substantiate its claim regarding 
mistake of fact, clerical error, or other inadvertence.

     This protest is denied in full.  A copy of this decision
should be attached to the Customs Form 19 and mailed to the
protestant as part of the notice of action on the protest.
     

                              Sincerely,


                              John Durant, Director
                              Commercial Rulings Division