HQ 225147: Protest 1401-93-100356; bulletin notice of liquidation; 19 CFR159.9; Goldhofer Fahrzeugwerk GmbH & Co. v. U.S.; Penrod DrillingCo. v. U.S.; 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 225147

                        November 28, 1994

LIQ-9-01-CO:R:C:E 225147 AJS

CATEGORY: Liquidation

District Director of Customs
U.S. Customs Service
101 East Main Street
Norfolk, VA 23510

RE: Protest 1401-93-100356; bulletin notice of liquidation; 19 CFR
159.9; Goldhofer Fahrzeugwerk GmbH & Co. v. U.S.; Penrod Drilling
Co. v. U.S.; 19 U.S.C. 1520(c)(1).

Dear Sir:

     This is our decision in protest 1401-93-100356, dated November
23, 1993, concerning the denial of a request under 19 U.S.C.
1520(c)(1) for reliquidation of an entry.

FACTS:

     The subject merchandise was entered on September 9, 1992.  A
Notice of Action, Customs Form (CF) 29, was issued on March 3,
1993, indicating that the entry at issue was subject to a rate
advance and that it was in the liquidation process.  A manual
bulletin notice of liquidation was posted on April 2, 1993,
liquidating the subject entry under subheading 7013.99.50,
Harmonized Tariff Schedule of the United States (HTSUS). 
Subsequently, HQ 953386 (April 22, 1993) was issued classifying the
subject merchandise within subheading 7010.90.20, HTSUS.  On
September 24, 1993, the protestant requested reliquidation of the
subject entry under section 1520(c)(1).  On October 26, 1993,
Customs denied this request stating that the issue could not be
addressed under section 1520(c)(1). 

     An Automated Commercial System (ACS) computer printout was
submitted by the protestant.  It is titled "Bulletin Notice of
Entries Liquidated, Liquidation Date 5/14/93".  The printout was
annotated to indicate that the subject entry was liquidated on
April 2, 1993, and not May 14.  The May 14 date was generated by
ACS approximately two weeks after the Customs port instructed ACS 




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to liquidate the entry.  No reason was given for Customs delay in 
instructing ACS to liquidate the subject entry.  ACS automatically
generates a computerized bulletin notice for posting based on the
liquidation date it generates.  This is the reason for the
existence of the May 14 document. 

ISSUE:

     Whether denial of the request for reliquidation under 19
U.S.C. 1520(c)(1) was proper.

LAW AND ANALYSIS:

     Initially, we note that this protest was timely filed pursuant
to 19 U.S.C. 1514(c)(2)(B).  The date of decision protested was
October 26, 1993, and the protest was filed on November 23, 1993. 
We also note that the refusal to reliquidate an entry under section
1520(c)(1) is a protestable matter pursuant to 19 U.S.C.
1514(a)(7). 

     19 CFR 159.9(a) provides that notice of liquidation of formal
entries shall be made on a bulletin notice of liquidation, CF 4333. 
The courts have stated that "[n]otice of liquidation is intended to
apprise importers of any action which may affect their interests,
and to afford them opportunity to secure administrative and
judicial review."  Goldhofer Fahrzeugwerk GmbH & Co. v. United
States, 706 F. Supp. 892, aff'd 885 F.2d 858, reh'g denied,
suggestion for reh'g declined, cert. denied 110 S. Ct. 1946 (1989). 
Part 159.9(b) states that "[t]he bulletin notice of liquidation
shall be posted for the information of importers in a conspicuous
place in the customhouse at the port of entry . . ."  The courts
have also stated that "[i]mporters bear the burden of examining all
notices posted in customhouse to determine whether its goods have
been liquidated, and to protest timely."  Penrod Drilling Co. v.
United States, 727 F. Supp. 1463, reh'g dismissed, motion to set
aside dismissed, 740 F. Supp. 858 (1989).  Part 159.9(c) states
that the bulletin notice of liquidation shall be dated with the
date it is posted or lodged in the customhouse for the information
of importers.  It further states that this posting or lodging shall
be deemed the legal evidence of liquidation.  The CF 4333 for the
subject entry was dated April 2, 1993.  In addition, the submitted
ACS document also indicates that the entry was liquidated on April
2.  Therefore, the subject entry was liquidated on April 2.

     Counsel for the protestant met with officials from this office
to discuss the subject protest.  In a submission of November 2,
1994, counsel asserts that "[i]t was agreed that . . . it was
unclear as to when the amount of duty was calculated and first made
known" to the protestant.  For the record, this office does not 




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recall any such agreement with counsel.  We do note, however, that
it was agreed that counsel would obtain a letter from the National
Finance Center stating that May 14 was the liquidation date.  No
such letter was provided. 

     Counsel makes several assertions unsupported by legal citation
which we will briefly discuss.  Counsel asserts that "without the
computation of duties there can be no liquidation."  No evidence
was provided to indicate that the computation of duties was not
performed on April 2 (i.e., the date of posting of liquidation) or
even earlier.  The bulletin notice indicates that the liquidation
involves an "increase" of duty.  Before Customs could determine
that such an increase was due, we assume that Customs also
determined the amount of this increase.  Therefore, we dispute the
claim that the computation of duties did not occur before or at the
time of liquidation. 

     Counsel asserts that "the calculation of duties due must be
posted in some way, or a legal liquidation cannot occur."  The
Customs Court concluded otherwise in Wong Sang Man v. United
States, 27 Cust. Ct. 248, C.D. 1379, (1951).  That case involved a
bulletin notice of liquidation in which the amount of duty owed was
not indicated.  The court stated that it was necessary for persons
interested to check the actual liquidation figures in order to
protest the liquidation.  Id at 249.  The court found this posting
procedure acceptable as long as an opportunity has been afforded
the proper parties to be appraised of the facts of the liquidation. 
Id at 250.  No evidence was submitted that the protestant attempted
or was not afforded an opportunity to be appraised of the facts of
the subject liquidation.  Therefore, we find this case instructive
for rejecting counsel's assertion that the calculation of duties
due must be posted.  

     Counsel notes that the bulletin notice of May 14, 1993, was
redlined.  Counsel states that "[t]herefore, since the bill
generated on May 14, 1993, does not refer to a liquidation of May
14, 1993, and cannot refer to a liquidation of April 2, 1993,
because that liquidation never took place, the bill is itself an
erroneous request for duties not supported by any liquidation at
all."  First, the May 14 bill does not refer to any liquidation
date and there is no location for this date on the bill.  Second,
we note that the bulletin notice was redlined to indicate that the
subject entry was liquidated by a manual bulletin notice of April
2.  Therefore, the bill of May 14 with the subject entry number
does in fact refer to a liquidation on April 2, 1993, the date of
posting.  Consequently, the claim that the bill is an erroneous
request for duties not supported by any liquidation is without
merit. 





                               -4-

     Counsel asserts that the protestant is entitled to relief
under 19 U.S.C. 1520(a).  Counsel specifically claims its client,
in paying the bill of May 14, either paid more in duty than
required by law or it paid an exaction not authorized by law.  We 
assume that counsel is referring to section 1520(a)(3) which states
that the Secretary of the Treasury is authorized to refund duties
or other receipts "[w]henever it is determined in the manner
required by law that any fees, charges, or exactions, other than
duties and taxes, have been erroneously or excessively collected". 
Inasmuch as this provision specifically excludes duties, counsel's
claim regarding the payment of duties may not be addressed under
section 1520(a).  In addition, Customs has stated that the Customs
bill is not an exaction within the meaning of section 1520(a) and
that Congress did not intend that ordinary customs duties be
considered an exaction.  HQ 224385 (May 23, 1993).  Thus, counsel's
claim comparing the payment of duties in this case to an exaction
is without merit.  

     19 U.S.C. 1520(c)(1) provides that Customs may reliquidate an
entry to correct 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."  

     The protestant initially requested reliquidation of the
subject entry under section 1520(c)(1).  The protestant asserts
that because the entry was liquidated on May 14 contrary to the
ruling (HQ 953386) issued on April 22, that the subject entry was
liquidated due to a mistake of fact.  As stated previously, the
subject entry was liquidated on April 2 and not May 14.  Therefore,
the entry was not liquidated contrary to the April 22 ruling
because this ruling had not yet been issued.  Consequently, a
mistake a fact did not occur in the liquidation of the subject
entry. 

HOLDING:

     The protest is denied.  A mistake of fact under section
1520(c)(1) did not occur in the liquidation of the subject entry.

     In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed with the Customs Form 19, by your
office to the protestant no later than 60 days from the date of
this letter.  Any reliquidation of the entry in accordance with the
decision must be accomplished prior to mailing of the decision. 
Sixty days from the date of the decision the Office of Regulations 




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and Rulings will take steps to make the decision available to
customs personnel via the Customs Rulings Module in ACS and the
public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.


                                 Sincerely


                                 John Durant, Director
                                 Commercial Rulings Division