HQ 224725: Reliquidation; 19 U.S.C. 1520(c)(1); Notice of liquidation;Penrod Drilling Co. v. U.S.; U.S. v. Reliable Chem. Co.; OmniU.S.A., Inc. 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 224725

                          July 13, 1993

LIQ-9-01-CO:R:C:E 224725 AJS

CATEGORY: Liquidation

Richard R. Rulon, Esq.
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793

RE: Reliquidation; 19 U.S.C. 1520(c)(1); Notice of liquidation;
Penrod Drilling Co. v. U.S.; U.S. v. Reliable Chem. Co.; Omni
U.S.A., Inc. v. U.S.

Dear Mr. Rulon:

     This is in reply to your letter of January 7, 1993,
concerning Durabla Canada, Inc., and the reliquidation of certain
entries of compressed gasket materials.

FACTS:
     
     On October 22, 1991, Customs issued HQ 089821.  This ruling
classified one of Durabla's compressed gasket materials (i.e.,
Durlon) within item 771.43, Tariff Schedules of the United States
(TSUS), and dutiable at the rate of 4.2% ad valorem.  This ruling
was requested by Durabla to resolve a dispute between Customs
Ogdensburg District and Durabla.

     Based on HQ 089821, Durabla contacted Customs Champlain
field office to request a refund of duty which Durabla had paid
on certain entries of Durlon made in 1988.  On December 4, 1991,
Durabla submitted a written request for a refund of these duties. 
However, Customs had reliquidated these entries at the latest on
October 19, 1990, within item 771.41, TSUS, and at the duty rate
of 6% ad valorem.  Conversations with the Champlain office
indicate that these entries where reliquidated based upon HQ
084293 (September 26, 1989), which classified Durlon within item
771.41, TSUS, if not in rolls and item 771.43, TSUS, if in rolls. 
On June 3, 1992, the Champlain field office responded to
Durabla's request of December 4.  Customs treated the request as
one for reliquidation under 19 U.S.C. 1520(c)(1) and denied the
request because it was untimely filed. 

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     Your letter requests, in accordance with 19 CFR
177.11(b)(6), that Customs Champlain field office be directed to
apply the holding in HQ 084293 as it relates to item 771.43,
TSUS, to reliquidate at the 4.2% rate those Durlon entries that
it reliquidated at the 6% rate.  In addition, you request that we
direct the Champlain field office to issue a refund to Durabla on
three additional entries, applying the 4.2% duty rate, since
Durabla has never received any refund on those entries.
     
ISSUE: 

     Whether the subject entries may be reliquidated pursuant to
19 U.S.C. 1520(c)(1) if the request for reliquidation was not
filed within one year after the date of liquidation. 

LAW & ANALYSIS:

     We initially note that no claim is made that the importer
did not receive proper notice of liquidation.  Nevertheless, we
think it is important to mention that "proper notice of
liquidation refers to the bulletin notice of liquidation."  See
Penrod Drilling Co. v. United States, 13 CIT 1005, 1009, 727 F.
Supp. 1463, 1467 (1989), aff'd 925 F. 2d 406 (1991). 
Furthermore, "the date of liquidation shall be the date the
bulletin notice is posted in the customshouse."  United States v.
Reliable Chem. Co., 605 F.2d 1179, 1183 (1979).  It is the
importer who "has the burden for examining all notices posted to
determine whether its goods have been liquidated, and to protest
timely."  Penrod Drilling, 13 CIT 1009, 727 F. Supp 1467. 
Therefore, it is the importers responsibility to remain abreast
of any liquidations of their merchandise and to take timely
action if appropriate under section 1520(c)(1).

     19 U.S.C. 1520(c) provides that the appropriate customs
officer may, in accordance with regulations prescribed by the
Secretary, 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
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 (emphasis added).

     In this instance, Durabla's request of December 4, 1991,
requests reliquidation of certain entries.  In a letter of June
3, 1992, the Champlain field office informed Durabla 


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that reliquidation of these entries was improper because the
request was not filed within one year after the date of the
original reliquidation.  The last date of reliquidation for the
various entries was October 19, 1990 (i.e., more than one year
before Durabla's request).  Consequently, based on the plain
meaning of section 1520(c)(1) we cannot direct that office to
reliquidate the subject entries because the request was untimely
filed.  

     The Court of Appeals for the Federal Circuit (CAFC) 
addressed a similar situation concerning section 1520(c)(1) in
Omni U.S.A., Inc. v. United States, 6 Fed. Cir. (T) 99 (1988). 
In that case, Customs improperly liquidated certain entries. 
However, the importer did not alert Customs to the error it had
committed within one year.  The CAFC stated that "[t]his court
has several times held that statutory pro- cedures for
administrative correction of errors . . . are binding on all
concerned, including the time limitations within which valid
actions may be taken."  Omni, p. 101.
The CAFC went on to hold that "[s]ince nobody brought the errors
to the attention of the appropriate customs officers within a
year of the date of liquidation, authority to correct them lapsed
according to the terms of section 1520(c)(1), the refusal by
customs to correct them upon untimely notice was correct, and was
the only course open to them."  Omni, p. 101.  We find this
decision supportive for determining that we do not possess
authority to reliquidate the subject entries in this instance.

HOLDING:

     The subject entries cannot be reliquidated pursuant to 19
U.S.C. 1520(c)(1) because the request for reliquidation was not
filed within one year after the date of liquidation.


                                 Sincerely,


                                 John Durant, Director
                                 Commercial Rulings Division