HQ 223112: Application for Further Review of Protest No. 2809-90- 000231; Bulletin Notice of Liquidation; Goldhofer Fahrzeugwerk GMBH & Co., v. United States; 19 U.S.C. 1520(c)(1) Dear Sir:

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 223112

                         August 27, 1992

LIQ-9-01-CO:R:C:E 223112 PH

CATEGORY:  Liquidation

Regional Commissioner of Customs
Pacific Region

RE:  Application for Further Review of Protest No. 2809-90-
     000231; Bulletin Notice of Liquidation; Goldhofer
     Fahrzeugwerk GMBH & Co., v. United States; 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 by your
office and the protestant.  Our decision follows.

FACTS:

     According to the file, on March 22, April 20, July 18,
September 23, October 11, October 23, and November 21, 1988, the
protestant entered various ceramic and metal sanitary ware.  The
merchandise was entered under item 535.3123, Tariff Schedules of
the United States (TSUS), and was so liquidated on November 18,
August 5, September 16, November 18, November 25, December 30,
and December 30, 1988, respectively.

     On August 2, 1989, the protestant filed a request that the
entries be reliquidated under 19 U.S.C. 1520(c) because,
according to the protestant, the importer did not know that the
merchandise qualified for duty-free entry under the Generalized
System of Preferences (GSP).  With this request, the protestant
filed Certificates of Origin (GSP Forms A) for the merchandise. 
Customs denied the request for reliquidation under 19 U.S.C.
1520(c) on November 7, 1989.

     On February 5, 1990, the protestant filed the subject
protest and application for further review.  The bases given by
the protestant for the protest are:  (1) that the liquidations of
the entries are null and void ab initio because the bulletin
notices of liquidation for the entries did not specify the name
of the importer of record; and (2) that the entries should have
been reliquidated under 19 U.S.C. 1520(c)(1) as requested.



ISSUES:

     (1)  Is the listing of the entry filer code of the Customs
broker who was the importer of record, rather than the name of
the importer of record, on the bulletin notices of liquidation
sufficient notice of liquidation under Goldhofer Fahrzeugwerk
GMBH & Co., v. United States, 885 F.2d 858 (CAFC 1989)?

     (2)  Was there sufficient evidence in this case to grant the
petition filed under 19 U.S.C. 1520(c)(1), the denial of which is
the subject of this protest?

LAW AND ANALYSIS:

     Initially, we note that both the request for reliquidation
under 19 U.S.C. 1520(c)(1) and the protest of the denial of that
request, under 19 U.S.C. 1514(a), were timely filed.

                            ISSUE (1)

     Under 19 U.S.C. 1500, Customs shall, among other things,
liquidate the entry of imported merchandise and give notice of
such liquidation to "the importer, his consignee, or agent",
under rules and regulations prescribed by the Secretary of the
Treasury.  Under 19 U.S.C. 1504, unless the period in which an
entry must be liquidated has been properly extended or the
liquidation has been suspended, an entry not liquidated within
one year from the date of entry of the merchandise shall be
deemed liquidated as entered.

     The statutory provision for protests is found in 19 U.S.C.
1514.  Under this statute, the liquidation or reliquidation of an
entry is final and conclusive upon all persons unless a protest
is filed in accordance with the statute or a civil action con-
testing the denial of a protest is timely filed in the Court of
International Trade.  Under paragraph (c)(2) of this provision, a
protest under this section must be filed with Customs within 90
days after "the notice of liquidation", or the date of the
decision which is protested.

     The Customs Regulations pertaining to the liquidation of
entries are found in 19 CFR Part 159.  Under 19 CFR 159.9, notice
of liquidation of formal entries shall be made on a bulletin
notice of liquidation, CF4333.

     The protestant contends, on the basis of Goldhofer
Fahrzeugwerk GMBH & Co., v. United States, 885 F.2d 858 (CAFC
1989), cert. den., 110 S. Ct. 1946 (1990), that the liquidations
in this case were void ab initio because of the omission of the
name of the importer of record in the bulletin notice of liquida-
tion.  In the Goldhofer case, the Court held that the due process
requirements of the Constitution were satisfied by Customs
bulletin notice of liquidation procedures, even though the
courtesy notice of liquidation (see 19 CFR 159.9(d)) was sent by
Customs to the wrong party.  At the time of the liquidation with
which the Goldhofer case was concerned, of course, the importer
of record was named in the bulletin notice of liquidation.

     After reviewing the minimum requirements in this regard as
articulated by the Supreme Court (see 885 F.2d at 861), the Court
in Goldhofer stated that "Customs is constitutionally required to
provide [the importer] with notice 'as certain to ensure actual
notice' that liquidation has occurred, as would mail notice" (885
F.2d at 861).  The Goldhofer Court proceeded to list a number of
factors which resulted in Customs procedures for bulletin notices
of liquidations meeting these minimum requirements.  The Court
noted that by entering merchandise into the Customs territory,
the importer is statutorily notified that the merchandise will be
liquidated and, since Customs regulations require that the
bulletin notice of liquidation shall be posted at the port of
entry of the merchandise, the importer is informed (by
regulations) where the bulletin notice of liquidation will be
posted.  In addition, the Court stated, the bulletin notice of
liquidation is designed to attract the attention of the
interested parties.  "Among other things, [it] lists the name of
the importer of record, the date of entry, the liquidation date,
the region/district/port number, the action, and the type of
entry and number."  (885 F.2d at 862, emphasis added.)  The Court
stated that bulletin notice of liquidation has not been shown to
be an unreliable means of providing notice (i.e., there was no
evidence that the notices posted in the Customhouse had been
removed before they could have their intended effect of notifying
the importer of record and any other interested parties that
liquidation had occurred).  The Court also looked to the purpose
and effect of the type of notice under consideration (i.e.,
bulletin notice of liquidation has both a legal and a warning
effect), before concluding that:

        ... posting of bulletin notice of liquidation in
        the customhouse at the port of entry alone was as
        certain to ensure actual notice of liquidation to
        the importer of record or its local Customs
        broker as mail notice and, therefore, mail notice
        was not constitutionally required.  [885 F.2d at
        863.]

     The factors listed in the Goldhofer decision are existent in
this case, except that instead of listing the "name of the
importer of record," the bulletin notices of liquidation listed a
three digit number (filer code) assigned only to the filer of the
entries in this case.  There is no evidence submitted, nor is
their any allegation made, that the filer code listed for these
entries was incorrect.  Under the Customs Regulations, the filer
of the entries must have placed the filer code with the entry
numbers on the entries and/or entry summaries under consideration
(see 19 CFR 142.3a), so there can be no argument that the
protestant was unaware of the filer code.  In view of the
foregoing, we conclude that listing the filer code (known to the
entry filer) on the bulletin notices of liquidation does satisfy
the constitutional due process requirements, as considered and
ruled upon in the Goldhofer case.

     In this case, the entry filer code listed on the bulletin
notices of liquidation was the same as the filer code listed on
the entries and represented a Customs broker.  The case of Joseph
Ullmann Brokerage Corp. v. United States, 29 Cust. Ct. 254, C.D.
1478 (1952), involved the issue of whether bulletin notices of
liquidation listing the Customs broker which had filed the
entries on behalf of the owner constituted adequate notice of the
liquidations.  In that case, an owner's declaration was filed
with Customs under 19 U.S.C. 1485 and the owner requested Customs
to re-post the liquidations as to the entries in the name of the
owner.  The Court affirmed Customs decision that the posting of
the notices of liquidation in the name of the importer of record
(i.e., the Customs broker) constituted adequate notice (see Pike-
Simmons Co. v. United States, 2 Cust. Ct. 187, C.D. 120 (1939);
rehearing denied, 2 Cust. Ct. 665, Abstract 41073 (1939), to the
same effect).

     The above Court cases were decided before the enactment in
1970 of the current statutory provision governing notice of
liquidation (in 19 U.S.C. 1500(e)) (formerly the requirement was
to give notice of liquidation in the form and manner prescribed
by the Secretary of the Treasury, see section 505, Tariff Act of
1930).  However, the legislative history to Public Law 91-271,
the law which enacted the current section 19 U.S.C. 1500(e),
makes it clear that there was no intent to change the then
existing practice of giving notice of liquidation (see H. Report
91-267, 91st Cong., 2nd Sess. (1970), reprinted at 1970
U.S.C.C.A.N. 3188, 3209-3210, "[i]t is contemplated that the
posting of notice of liquidation will continue to constitute
'legal' notice under customs regulations ... [and] the present
practice of mailing actual notice of liquidation of all dutiable
formal entries to the last known address of the importer of
record [will not be discontinued]" (emphasis added)).  Section
1500(e) requires that, "under rules and regulations prescribed by
the Secretary", the notice of liquidation be given to the
importer, his consignee, or agent "in such form and manner as the
Secretary shall prescribe in such regulations".  Under its rules
and regulations, (see 19 CFR 142.3a(a)(1) and T.D. 88-38),
Customs gives this notice by listing the entry filer code on the
bulletin notice of liquidation.  Under 19 U.S.C. 1484(a)(2)(C),
an entry filer is required to be the "importer of record" (i.e.,
the owner or purchaser of the merchandise or an appropriately
designated broker (see 19 U.S.C. 1484)) (note also, that the
Goldhofer case, decided under the current provision, approved the
listing of the importer of record).  Therefore, we conclude that
a bulletin notice of liquidation listing the entry filer code of
the Customs broker whose entry filer code was listed on the
entries continues to satisfy the liquidation notice requirement
in section 1500(e).

     The protest is DENIED with regard to this issue.

                            ISSUE (2)

     Under section 520(c)(1), Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)), Customs may reliquidate an entry to correct a
clerical error (see PPG Industries, Inc., v. United States, 7 CIT
118, 124 (1984), and cases cited therein), mistake of fact (see
Hambro Automotive Corporation v. United States, 66 CCPA 113, 118,
C.A.D. 1231, 603 F.2d 850 (1979)), or other inadvertence (see
Occidental Oil & Gas Co. v. United States, Vol. 23 Cust. Bull. &
Dec. No. 17, April 20, 1989, page 40, 42, CIT Slip Op. 89-40),
not amounting to an error in the construction of a law (see
Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262-263, C.D.
4547 (1974), and cases cited therein) when certain conditions are
met.

     The conditions required to be met under 19 U.S.C. 1520(c)(1)
are that the clerical error, mistake of fact, or other inadver-
tence must be adverse to the importer, manifest from the record
or established by documentary evidence, and brought to the
attention of Customs within one year after the date of liquida-
tion of the entry.  The relief provided for in 19 U.S.C.
1520(c)(1) is not an alternative to the relief provided for in
the form of protests under 19 U.S.C. 1514; section 1520(c)(1)
only affords "limited relief in the situations defined therein"
(Phillips Petroleum Company v. United States, 54 CCPA 7, 11,
C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc.,
v. United States, 85 Cust. Ct. 68, 69, C.D. 4874 (1980); see
also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F.
Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States,
10 CIT 505, 508, 643 F. Supp. 623 (1986)).

     Basically, the clerical error, mistake of fact, or other
inadvertence upon which the request for relief under 19 U.S.C.
1520(c) was based in this case was that the importer did not know
that the merchandise was eligible for duty-free treatment under
the GSP and, therefore, did not submit GSP Forms A until after
liquidation of the entries.  The protestant cites United States
v. C.J. Tower & Sons of Buffalo, 61 CCPA 90, C.A.D. 1129 (1974),
as supporting its contention that this is a case in which relief
under 19 U.S.C. 1520(c)(1) should be granted.

     It may be that some of the facts in this case, as alleged by
the protestant in its brief, are analogous to the facts in the
C.J. Tower & Sons of Buffalo case, cited above.  However, as
explicitly stated in 19 U.S.C. 1520(c)(1), in order to qualify
for relief under that provision, the clerical error, mistake of
fact, or other inadvertence must be manifest from the record or
established by documentary evidence.  According to the Court in
PPG Industries, Inc. v. United States, 4 CIT 143 (1982), quoting,
in part, from the lower court in Hambro, id, (Hambro Automotive
Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F.
Supp. 1220 (1978)):

        ... it is incumbent on the plaintiff to show by
        sufficient evidence the nature of the mistake of
        fact.  The burden and duty is upon the plaintiff
        to inform the appropriate Customs official of the
        alleged mistake with "sufficient particularity to
        allow remedial action."  [4 CIT at 147-148; see
        also, United States v. Lineiro, 37 CCPA 5, 10,
        C.A.D. 410 (1949), in which the Court stated
        "[d]etermination of issues in customs litigation
        may not be based on supposition."]

     In this case there is no evidence of the claimed clerical
error, mistake of fact, or other inadvertence other than the
statements by the protestant's representative in the request for
reliquidation and the protest that the protestant did not know
that the merchandise qualified for duty-free treatment under the
GSP (see Bar Bea Truck Leasing Co., Inc., v. United States, 5 CIT
124, 126 (1983), with regard to the sufficiency as evidence of a
counsel's unsupported assertions).  There is no explanation, even
by the protestant's representative, as to how and why the
protestant did not know of the possible qualification for GSP
treatment of the merchandise, nor is there any documentary
evidence in this regard (e.g., see C.J. Tower & Sons of Buffalo,
Inc. v. United States, supra (cited by the protestant), and
C.S.D. 89-87).

     In the absence of sufficient evidence establishing that
failure to claim GSP treatment for the merchandise under consid-
eration was the result of a clerical error, mistake of fact, or
other inadvertence correctable under 19 U.S.C. 1520(c)(1), the
protest must be DENIED, with regard to this issue. 
HOLDINGS:

     (1)  The listing of the entry filer code of the Customs
broker who was importer of record, rather than the name of the
importer of record, on the bulletin notices of liquidation does
provide sufficient notice of liquidation under Goldhofer
Fahrzeugwerk GMBH & Co., v. United States, 885 F.2d 858 (CAFC
1989).

     (2)  The evidence submitted in this case was insufficient to
grant the petition filed under 19 U.S.C. 1520(c)(1), the denial
of which is the subject of this protest.

     The protest is DENIED.  A copy of this decision should be
attached to the Customs Form 19 and provided to the protestant as
part of the notice of action on the protest.

                              Sincerely,



                              John Durant, Director