LIQ-9-01 CO:R:C:E 223755 C
District Director of Customs
U.S. Customs Service
7911 Forsythe Blvd.
Suite 625
St. Louis, Missouri 63105
RE: Request for internal advice concerning reliquidation to
correct a mistake of fact, clerical error, or inadvertence;
failure to file a timely protest under 19 U.S.C. 1514 is not
correctable mistake or inadvertence; 19 U.S.C. 1520(c)(1)
Dear Sir:
This responds to your request for internal advice concerning
the referenced subject (PRO-1-ADD:CO DKH; February 21, 1992). We
have reviewed the materials submitted and our response follows.
FACTS:
The facts as we understand them are as follows: A company
imported ceramic steins at a duty rate of 13.5% based on a
Customs Headquarters ruling (HRL 089243). In response to a
protest and application for further review, Customs Headquarters
reversed this ruling, ruling instead that the duty rate is free
(HRL 087732). Based on this new ruling, the company filed
various timely protests in order to obtain reliquidations in
accordance with the new ruling. Regarding the filing of these
protests, the company reported that it was the broker's
responsibility to transmit to the company's attorney the data
pertaining to the entries to be protested. That information
included the date of liquidation. As the protest filing deadline
approached, the attorney, using this information, would file
timely protests. The company asserts that with respect to one
entry, the information transmitted from the broker to the
attorney was incorrect. The date of liquidation provided by the
broker was June 17, while the correct date was June 7. It is
alleged that the broker made a mistake in transcribing the
liquidation date that was included in the information provided to
the attorney and that this mistake led to the failure to file a
protest covering this one entry. (The attorney's employee
learned of the mistake prior to filing a protest, and since it
was already too late, the protest was not filed.) The company
asserts that this mistake is correctable under 19 U.S.C.
1520(c)(1) as a mistake of fact or inadvertence.
ISSUE:
Is a failure to file a protest in a timely manner a
correctable mistake or inadvertence under 19 U.S.C. 1520(c)(1)?
LAW AND ANALYSIS:
The Customs laws provide a remedy for errors in the
liquidation of entries. Under 19 U.S.C. 1514, Customs decisions,
such as those pertaining to classification, valuation, and duty
assesement, among others, can be protested if brought to the
attention of the appropriate Customs officer within 90 days of
the date of liquidation. 19 U.S.C. 1514(a) and 1514(c)(2)(A).
Failure to file a timely protest renders the liquidation binding
on the importer and the government. In addition, and quite apart
from the protest procedure of 19 U.S.C. 1514, the Customs laws
provide for the correction of clerical errors, mistakes of fact,
or other inadvertences that do not amount to errors in the
construction of a law. Under 19 U.S.C. 1520(c)(1), such mistakes
can be corrected by reliquidation if brought to the attention of
the appropriate Customs officer within one year of the date of
liquidation. This reliquidation provision is not intended to be
a simple alternative for importers who fail to file timely
protests. Instead, it is intended to apply in limited
circumstances (Phillips Petroleum Co. v. United States, 54 CCPA
7, C.A.D. 893 (1966) and Godchaux-Henderson Sugar Co. v. United
States, 85 Cust. Ct. 68, C.D. 4874 (1980)) and only when a
correctable error is established either on the record or by
submitted documentary evidence.
The company argues that the transcription error commited by
the broker - which led to expiration of the 90 day period before
a protest could be filed - is an error correctable under 19
U.S.C. 1520(c)(1). In its letter of December 20, 1991, the
company's counsel cites three Customs Headquarters rulings and
urges that two of them be followed and the other be overruled.
The ruling letter urged to be overruled is 725690, dated April 8,
1986. This case involved facts similar to those here. A broker
was to provide an importer's attorney copies of entries that were
to be protested. Using this information, the attorney was to
file timely protests. The broker's employee mistakenly placed
the entry copies in a file folder and never sent them to the
attorney. Consequently, protests were not filed for some
entries. As to the affected entries, instead of filing protests,
the attorney filed a request for reliquidation under 19 U.S.C.
1520(c)(1), identifying the broker's employee's mistake as the
correctable error. This request was denied on the grounds that a
failure to file a timely protest is not correctable under section
1520(c)(1). The importer then filed a protest and application
for further review under 19 U.S.C. 1514(a)(7). In upholding the
denial of the section 1520(c)(1) request for reliquidation,
Customs stated the following:
[The] issue is whether the failure to file a
protest can be corrected by way of 19 U.S.C.
1520(c)(1). We have held that the filing of
a protest is a Customs transaction within the
meaning of the statute (case 726634), and
that the denial of a protest is a Customs
transaction (case 709992). The question is
not without difficulty, especially in light
of the Tower case [C.J. Tower & Sons v.
United States, 68 Cust. Ct. 17, C.D. 4327,
336 F. Supp. 1395 (1972), aff'd sub nom.
United States v. C.J. Tower & Sons, 61 CCPA
90, C.A.D. 1129, 499 F. 2d 1277 (1974).] and
numerous instances in which reliquidation has
been authorized where documentation has not
been timely filed (e.g., when truck drivers
fail to inform Customs when drawback
merchandise is being exported.) But the
requirement to file a protest within 90 days
of an entry's liquidation is statutory and of
a jurisdictional nature differing, we
believe, from provisions in Customs
Regulations or instructions. Accordingly, we
hold that where the error sought to be
corrected is the untimely filing of a protest
under 19 U.S.C. 1514, rather than an error in
the protest itself, Customs has no authority
to reliquidate the entries covered by the
protest under 19 U.S.C. 1520(c)(1). (Emphasis
added.)
The two ruling letters that counsel argues should be
followed in this case are the two cited in the above quotation:
726634 and 709992. These rulings stand for the propositions
attributed to them above, the former recognizing the filing of a
protest as a Customs transaction and the latter recognizing the
denial of a protest as a Customs transaction within the meaning
of 19 U.S.C. 1520(c)(1). (More specifically, 726634 held that a
request to amend (modify or correct) a protest falls within the
meaning of "other customs transaction" in section 1520(c)(1),
such that the denial of such a request could properly be the
subject of a reliquidation request under the statute.) Counsel
argues that application of these two rulings to the facts here
will yield the conclusion that the failure to file a timely
protest is correctable under section 1520(c)(1). Counsel further
asserts that application of these rulings will necessitate the
overruling of ruling 725690.
We are unpersuaded by counsel's argument. The two rulings
are significantly different, and thus distinguishable, from the
instant case, as well as from 725690. In both cases, protests
were filed in a timely manner and were denied, neither on the
basis of timeliness. In the instant case (as well as 725690), a
protest was never filed. Because of the distinguishing fact
situations of these cases, 725690 did not overrule them. They
are plainly inapplicable to the instant set of facts.
We conclude that the correct treatment of the issue
presented was expressed in Customs ruling 725690. The filing of
a timely protest is jurisdictional in nature and thus mandatory.
The failure to meet the deadline is not correctable under section
1520(c)(1). Further, the sole remedy of 19 U.S.C. 1520(c)(1) is
reliquidation. An error, regardless of its nature, is outside
the scope of section 1520(c)(1) if the requested remedy is
something other than the act of reliquidation of an entry. Here,
the protestant is requesting a remedy that Customs does not have
the authority to provide: accepting as timely a protest never
filed. Further still, the alleged error here - a transcription
error - is in a written communication between a broker and the
importer's attorney. This is not the completion or filing of a
Customs document; it is not a customs transaction. Thus, the
alleged error does not fall within the ambit of section
1520(c)(1) as an error in either an entry, liquidation, or other
customs transaction. Of course, the denial of a section
1520(c)(1) reliquidation request is protestable under 19 U.S.C.
1514(a)(7), and the denial of such a protest is sufficient
condition precedent for the filing of a claim in the U.S. Court
of International Trade. 19 U.S.C. 1514(a) and 19 C.F.R. 174.31.
Finally, PROTESTANT submitted additional argument by fax
transmission dated October 1, 1992. Therein, PROTESTANT, through
counsel, argues that the instant set of facts is distinguishable
from the facts decided upon in Godchaux-Henderson Sugar Co. v.
United States, 85 Cust. Ct. 68, C.D. 4874 (1980), and thus the
instant case should be decided differently than was Godchaux.
In Godchaux, the importer failed to enter its shipment duty
free under the Generalized System of Preferences before the
effective date of an executive order that made the importation
ineligible for duty free treatment (prior to that effective date,
the shipment was eligible for duty free treatment). The importer
alleged that clerical error or mistake was responsible for this
failure. The United States Customs Court pointed out that this
mistake - failing to file a consumption entry prior to the
effective date - was not an error in an entry, liquidation, or
other customs transaction. The court stated that there was no
error in the entry that was filed. Thus, the alleged error is
not within the scope of section 1520(c)(1).
PROTESTANT here asserts that since the instant case involves
a mistake in the filing of a protest rather than a mistake in an
entry, Godchaux is inapplicable. We disagree. First, as the
court pointed out, there was no mistake in the entry. Id. at 75.
Second, the court stated that the failure of the importer to file
the entry by the deadline was not within the scope of section
1520(c)(1). Id. at 74. The court drew a distinction between a
correctable mistake (under the statute) in an entry filed timely,
or before the deadline, and a simple failure to file the entry
before the deadline. Id. at 75. Through analogy, Godchaux
supports the proposition that a correctable error in a timely
filed protest may be remediable under section 1520(c)(1), but a
simple failure to file a protest on time is not remediable since
it is not within the scope of that section.
HOLDING:
An error or mistake that causes a failure to file a timely
protest within 90 days of the date of liquidation is not
correctable under 19 U.S.C. 1520(c)(1). The 90 day filing
requirement is jurisdictional in nature and thus mandatory.
Further, 19 U.S.C. 1520(c)(1) provides one specific remedy:
reliquidation of an entry. To declare untimely filed protests,
or protests never filed, to be timely is not a remedy authorized
under section 1520(c)(1).
Sincerely,
John Durant, Director
Commercial Rulings Division