LIQ-9-01-CO:R:C:E 220965 CB

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. 3901-6-000779 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.


Protest has been filed against the Customs Service denial of a request for reliquidation of the subject entries, pursuant to 19 U.S.C. 1520(c)(1).

According to protestant, the entry at issue consists of an experimental drug. Protestant states that the shipment was entered on May 21, 1985, under TSUS item 437.32, but should have been entered temporarily under bond under TSUS item 864.30. It is claimed that upon discovery of the mistake, protestant's customs broker submitted a letter dated August 6, 1985, along with an explanatory letter from protestant dated June 11, 1985, describing the circumstances and requesting that Customs accept a substitute entry. Customs proceeded with liquidation on October 11, 1985.

Protestant alleges that, at the time of entry, the broker was not aware that the merchandise was an experimental drug. Apparently, the person normally responsible for expediting the shipment was on vacation, and the replacement employee was not aware that the imported compound was to be used in research and experiments and was not intended for sale. There was no indication of the intended use of the merchandise on the face of the import documents. As evidence of its intent to enter the merchandise under item 864.30, TSUS, protestant points to the fact that several TIB entries had already been made for the same merchandise.


The DARC (Classification & Value) at Chicago concurs with the recommendation that the protest be denied because there is no evidence of the requisite intent to file a TIB entry summary at the time the consumption entry was filed. The National Import Specialist (NIS) recommends that the claim be approved. The NIS concludes that the previous entries establish an intent to file the TIB entry.


Whether a clerical error correctable under 19 U.S.C. 1520 (c)(1) occurred when the customs broker failed to request temporary importation under bond at the time of entry?


Section 520(c)(1) 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).

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. Inadvertence connotes inattention, oversight, negligence, or lack of care while clerical error occurs when a person intends 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. These errors are not necessarily mutually exclusive. However, errors in the construction of a law are not correctable under 1520(c). 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 the person normally responsible for expediting the shipment was on vacation, and the replacement was unaware of the fact that the merchandise was experimental and not intended for sale or any other use. As stated by the Court of International Trade in PPG Industries, Inc. v. United States, 7 Ct. Int'l Trade 118, 124 (1984), three conditions must be satisfied before an entry can be reliquidated to correct a mistake of fact:

(1) a mistake of fact must exist; (2) the mistake must be manifest from the record or established by documentary evidence; and (3) the mistake of fact must be brought to the attention of the Customs Service within the time requirements of the statute.

In the instant case, protestant has satisfied all three requirements. A mistake of fact has occurred. There is evidence of the mistake, i.e. protestant's past practice of entering the same merchandise under TIB as evidenced by the three previous entries made during the same year. And, protestant's attempt to bring the mistake to the attention of the Customs Service is evidenced by protestant's letter of June 11, 1985, and the broker's letter of August 6, 1985.

The Customs Service has previously held that, when a consumption entry is filed inadvertently where there appears no intention that the goods be taken into consumption and intent is ascertainable from the record, relief may be granted under 1520 (c). See HQ Ruling 723375, issued August 27, 1984. Reliquidation is proper when a clerical error, mistake of fact, or other inadvertence is manifest from the record or established by documentary evidence. See also HQ 220969 issued November 23, 1988. The subject protest meets all of these requirements.


The record sufficiently establishes, by documentary evidence, a clerical error, mistake of fact or inadvertence on the part of the broker. Therefore, you are advised to Approve the protest.


John Durant, Director
Commercial Rulings Division