HQ 220880: Application for further review of Protest No. 3401-7-000033 under 19 U.S.C. 1520(c)(1)

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 220880

                        January 30, 1991

PRO-2-02-CO:R:C:E  220880 CB

CATEGORY:  Entry/Protest

Regional Commissioner
U.S. Customs Service
North Central Region
Suite 1501
55 East Monroe Street
Chicago, ILL 60603-5790

RE:  Application for further review of Protest No. 3401-7-000033
     under 19 U.S.C. 1520(c)(1)

Dear Sir:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the points raised and our
decision follows.

FACTS:

     The record indicates that on October 22, 1986, the Customs
Service sent out telex 13707 concerning the suspension of
liquidation of certain softwood lumber products from Canada.  The
telex instructed the field offices to suspend liquidation and
require importers to post a cash deposit or single entry bond
equal to 15 percent of the FOB mill price.  Additionally, the
telex listed certain companies which were excluded from the
preliminary determination.  The subject entry was made by one of
the excepted companies.

     On January 2, 1987, the Customs Service sent out telex
016673 advising all field offices of the termination of the
countervailing duty investigation, resumption of liquidation, and
imposition of a temporary surcharge on all listed softwood lumber
products from Canada.  The surcharge was imposed by Presidential
Proclamation 5595 of December 30, 1986.  The telex and
proclamation did not indicate whether any companies were exempt
from the temporary surcharge.  The surcharge was effective as of
December 31, 1986.

     Telex 00563 was sent out by the Customs Service on January
14, 1987, terminating the collection of the 15 percent surcharge
on shipments exported from Canada as of January 8, 1987.  The
telex indicated that the additional duty should still be
collected on shipments exported from Canada on or after December
31, 1986 and on or before January 7, 1987.

                               -2-



     The subject merchandise was exported from Canada on January
7, 1987.  The consumption entry documentation was dated January
7, 1987.  However, the broker requested that it be held until
January 8, 1987.  Apparently, the Customs inspector changed the
date on the invoice and returned it to the broker.  The CF
3461ALT shows the merchandise as released on January 7, 1987.
According to the record, the Import Specialist noticed the
changed date and liquidated the entry with the added 15 percent
surcharge.  On May 27, 1987 the broker contacted the Customs
Service to point out the date of release.  The Import Assistant
issued a CF 29 indicating that the entry would be reliquidated
with a refund.  The record indicates that further research
disclosed the events as stated above.  Therefore, request for
reliquidation was denied through the 19 U.S.C. 1520 protest
procedure.

     Protestant contends that the date of release of the shipment
was January 8, 1987 and, therefore, the merchandise is not
subject to the 15 percent surcharge.  Alternatively, that this
entry is exempt from the 15 percent surcharge because the
importer was excluded from the October 22, 1986 preliminary
determination.  We will address the issues in reverse order.

ISSUES:

     1)  Whether the correct date of release is January 7, 1987,
(the date the Customs officer examined and released the
merchandise) or January 8, 1987, as requested by the importer?

     2)  Whether the subject entry was subject to the surcharge
imposed by the Presidential proclamation?

     3)  Whether an error correctable under 19 U.S.C. 1520(c)(1)
occurred when the Customs Service liquidated the entry subject to
the surcharge?

LAW AND ANALYSIS:

     The subject merchandise was released under the immediate
delivery provisions.  Section 448, of the Tariff Act of 1930, as
amended (19 U.S.C. 1448(b)), and the Customs Regulations issued
thereunder, provide that the Secretary of the Treasury is
authorized to provide for the issuance of special permits for
special delivery (immediate delivery), prior to formal entry
therefor.  The regulations provide, at 19 CFR 142.22, that an
application for a special permit for immediate delivery shall be
made on the CF 3461.  There are no provisions in the regulations
which authorize the postponement of the time of release of
                               -3-



merchandise.  In the absence of such language, it must be
concluded that the time of release of merchandise is established
when the application (CF 3461) is submitted and accepted.  In the
instant case, the CF 3461ALT was submitted on January 7, 1987.
It also indicates that the merchandise was released on January 7,
1987.  Therefore, the date of release of the subject merchandise
was January 7, 1987.

     Protestant contends that the subject entry is exempt from
the 15 percent surcharge because the importer was excluded from
the October 22, 1986 preliminary determination.  We disagree with
this contention.  The imposition of the 15 percent surcharge on
the subject entry was based on the Presidential Proclamation of
December 30, 1986.  The Proclamation does not exempt any
importers from the surcharge.  It is independent of the October
22, 1986, preliminary determination.  Therefore, protestant's
reliance on such preliminary determination is unfounded.

     The start of the period during which the lumber surcharge
was to be imposed was established by the Presidential
Proclamation.  Paragraph 1 of Presidential Proclamation 5595 of
December 30, 1986, imposes the surcharge on lumber that is
entered on or after December 31, 1986.  The Proclamation also
authorized the Secretary of Commerce to take all necessary and
appropriate steps to end the temporary surcharge.  The Secretary
exercised this authority by suspending the temporary surcharge on
merchandise exported from Canada on or after January 8, 1987.
The Secretary's notice indicated that the surcharge was to be
collected on all merchandise exported from Canada on or after
December 31, 1986, and on or before January 7, 1987.  There is no
dispute that, in the instant case, the lumber was in the United
States on or before January 7, 1987, having been sent to join the
commerce of this country from Canada.  Therefore, it was
exported within the period of the application of the surcharge.

     Regarding protestant's request for reliquidation, section
520(c) of the Tariff Act of 1930, as amended (19 U.S.C. 1520
(c)(1)), provides that Customs may correct certain errors, if
adverse to the importer, within one year from the date of
liquidation.  An entry may be reliquidated in order to correct a
clerical error, mistake of fact, or inadvertence not amounting to
an error in the construction of a law.  See 19 U.S.C. 1520(c)(1);
19 CFR 173.4.  Section 520(c) 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.  See Computime Inc. v. United States, 9 Ct.
Int'l Trade 553, 622 F. Supp. 1083 (1985); see also Universal
Cooperatives, Inc. v. United States, 23 Cust. B. & Dec. No. 29,
p. 38, Slip Op. No. 89-89 (CIT June 27, 1989).

                               -4-



     Section T.D. 54848 describes and distinguishes correctable
errors under 1520(c).  Mistake of fact occurs when a person
believes the facts to be other than what they really are and
takes action based on that erroneous belief.  The reason for the
belief may be that a fact exists but is unknown to the person or
he may believe that something is a fact when in reality it is
not.  However, errors in the construction of a law are not
correctable under 1520(c)(1).  Those occur when a person knows
the true facts of a case but has a mistaken belief of the legal
consequences of those facts and acts on that mistaken belief.  94
Treas. Dec. 244, 245-246 (1959).

     The protestant's claim for relief under 19 U.S.C. 1520(c)(1)
is that this entry was exempt from the surcharge based on the
October telex; therefore, Customs mistakenly assessed the
surcharge at the time of liquidation.  We conclude that
protestant's claim is outside the scope of 1520(c)(1).  As
previously stated, the imposition of the 15 percent surcharge was
based on the Presidential Proclamation of December 30, 1986.  The
Proclamation did not exempt any importers from the surcharge.
The lumber was subject to the surcharge.  It was entered on or
after December 30, 1986 and exported on or before January 7,
1987.  The denial of the request for reliquidation under 19
U.S.C. 1520(c)(1) was proper since the issue involved an
interpretation of a law.

HOLDING:

     The date of release of the subject merchandise was January
7, 1987, as indicated on the CF 3461ALT.  The merchandise was
exported from Canada on January 7, 1987.   Therefore, it was
subject to the 15 percent surcharge.  The subject protest is
outside the scope of 19 U.S.C. 1520(c)(1).  This protest should
be denied for the reasons stated.


                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division