CON-2-07-CO:R:C:E 223194 CB
Regional Commissioner
U.S. Customs Service
Northeast Region
Suite 801
10 Causeway Street
Boston, MA 02222-1056
RE: Application for further review of Protest No. 0712-91-
000118 under 19 U.S.C. 1514; Civil Aircraft Agreement;
9802.00.50 HTSUSA; C.S.D. 83-37
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 subject protest is based on the District Director's
denial of reliquidation of the subject entries. According to
protestant, at the time the entry summary was prepared and
presented it was not known that a civil aircraft certificate
existed. No such documentation accompanied the shipment, nor was
it furnished to the customs broker subsequent to the importation.
Subsequent to filing the entry summary, protestant contacted
the importer of the merchandise, obtained a properly completed
certificate, and forwarded it to the District Director prior to
liquidation of the entry. The entry was liquidated on October
26, 1990, as entered. Subsequent to liquidation, it was also
discovered that there was, in fact, a blanket certificate
covering the subject merchandise on file with the District
Director in Chicago, Illinois. Protestant contends that the
entry should be reliquidated as duty free under the special rate
duty column as a civil aircraft part.
ISSUE:
Whether filing a civil aircraft certificate subsequent to
entry but prior to liquidation satisfies the requirements of 19
CFR 10.183(d)?
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LAW AND ANALYSIS:
Title VI, "Civil Aircraft Agreement" of the Trade Agreements
Act of 1979 (Sec. 601, P.L. 96-39, 93 Stat. 144, 96th Cong., 1st
Sess. 1979), implemented the Agreement on Trade in Civil
Aircraft. This Agreement became effective in the United States
on January 1, 1980. On June 7, 1984, 19 CFR Part 10 was amended
to include section 10.183. This section provides for duty free
admission of civil aircraft parts for civil aircraft certified
for use in accordance with the provisions of General Note
3(c)(iv) of the Harmonized Tariff Schedule of the United States
(HTSUS) and 19 CFR 10.183.
Section 10.183(d) provides that the importer must submit at
the time of filing the entry summary a certification for each
entry or a blanket certification if more than one entry of civil
aircraft parts will be made during a 12-month period. The
certification will be valid for a period of one year from the
date of approval by the district director in the district where
the civil aircraft parts will be entered. The blanket
certification may be renewed for additional one-year periods upon
written request to each concerned district director. Failure to
provide the certification at the time of filing the entry summary
or to have an approved blanket certification on file with the
district director in the district where the entry summary is
filed shall result in a dutiable entry. T.D. 84-109, 49 FR
19450, May 8, 1984, as amended by T.D. 85-123, 50 FR 29953, July
23, 1985; T.D. 89-1, 53 FR 51252, Dec. 21, 1988.
It is well-settled that a later submission of the required
certification is not acceptable unless the importer can satisfy
Customs that the failure to procure it at the time of filing the
entry summary was due to a clerical error, mistake of fact, or
other inadvertence within the meaning of 19 U.S.C. 1520(c)(1).
See C.S.D. 83-37. 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 of the date of liquidation. In pertinent part 1520(c)(1)
provides:
(c) Notwithstanding a valid protest was not filed, the
appropriate customs officer may, ...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
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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; ...
It has been stated that "a clerical error is a mistake made
by a clerk or other subordinate, upon whom devolves no duty to
exercise judgement, in writing or copying the figures or in
exercising his intention" (see PPG Industries, Inc. v. United
States, 7 CIT 118, 124 (1984), and cases therein). It has been
held that a mistake of fact exists where a person understands the
facts to be other than they 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. A mistake of law
exists where a person knows the facts as they really are but has
a mistaken belief as to the legal consequences of those facts.
(Hambro Automotive Corporation v. United States, 66 CCPA 113,
118, C.A.D. 1231, 603 F. 2d 850 (1979), quoted in Concentric
Pumps, Ltd. v. United States, 10 CIT 505, 508 643 F. Supp. 623
(1986); see also, C.J. Tower & Sons of Buffalo, Inc. v. United
States, 68 Cust. Ct. 17, 22, D.D. 4327, 336 F. Supp. 1395 (1972),
aff'd, 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), and
Universal Cooperatives, Inc. v. United States, Vol. 23 Cust.
Bull. & Dec., No. 29, July 19, 1989, page 38, 40, CIT Slip Op.
89-89), and 94 Treas. Dec. 244, 245-246 (1959)). Inadvertence
has been defined as "an oversight or involuntary accident, or the
result of inattention or carelessness, and even as a type of
mistake" 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, quoting C.J. Tower & Sons of Buffalo, Inc. v. United
States, supra at 22.
Section 1520(c)(1) would allow an importer to later submit
the required certification and have the Civil Aircraft Agreement
provisions apply to his entry where Customs had informed an
importer that he could not enter his aircraft or parts as duty
free because it was being brought in for repair. See C.S.D. 83-
37, dated October 27, 1981. A similar outcome may be seen if the
aircraft had previously received drawback, or if the required use
was accomplished outside of the United States. See HRL 724667,
dated March 1, 1984. In the instant case, the failure of the
broker to file the certificate timely is not a mistake
correctable under 19 U.S.C. 1520(c)(1). The importer and his
broker are obligated to know the Customs procedures and laws
regarding the filing of the appropriate documents timely.
Additionally, the importer was obviously aware that a certificate
was required by regulation since it had filed a blanket
certificate in Chicago.
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In any event, the fact that there was a blanket certificate
covering the subject merchandise on file with the District
Director in Chicago is irrelevant. The regulations require
submission of the blanket certification to the district director
at each district where the parts are to be entered. 19 CFR
10.183(c)(2). In this case, the blanket certificate should have
been filed with the District Director in Ogdensburg, New York.
HOLDING:
A civil aircraft certification cannot be filed subsequent to
entry unless there exists a mistake of fact correctable under 19
U.S.C. 1520(c)(1). Inasmuch as we do not find that a mistake of
fact has occured, you should deny this protest in full.
A copy of this decision should be attached to the CF 19,
Notice of Action, sent to the protestant to satisfy the notice
requirement of section 174.30(a), Customs Regulations.
Sincerely,
John A. Durant, Director
Commercial Rulings Division