LIQ-9-01-CO:R:C:E 222525 CB
Regional Commissioner
U.S. Customs Service
5850 San Felipe Street
Suite 500
Houston, TX 77057-3012
RE: Application for Further Review of Protest No. 5301-88-
000628 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.
FACTS:
The merchandise at issue consists of various fasteners which
were appraised with an increase over the entered value.
According to the protestant, at some time prior to October 10,
1984, the district director concluded that importer's entries of
certain merchandise should be appraised with an advance in value
by the addition of a fixed percentage. Protestant states that
its attorneys tried to determine Customs basis for appraisement
and offer alternate formulas.
Protestant claims that it was clear that Customs intended to
withhold liquidation of the subject entries pending further
information about the import transactions because suspension
notices were received by the importer. The protestant states
that extension notices were substituted for the suspension
notices beginning around September 24, 1985. Per the protestant,
extension notices continued to be issued by Customs for entries
through March 13, 1986. No further extension notices were
received for later entries, but no liquidation notices were
received by protestant after February, 1986. On October 17,
1986, eighty-four (84) entries were liquidated, including forty-
seven (47) entries for which protestant had received suspension
or extension notices.
According to protestant, the extension notices should have
protected at least twenty-six (26) of the liquidated entries.
Moreover, twenty-two (22) of the earlier entries should have been
-2-
protected from liquidation by suspension because there is no
evidence that any legal bar to liquidation had been lifted. It
is protestant's contention that the October, 1986, liquidations
were the result of an inadvertence, mistake of fact or clerical
error because Customs deviated from its usual format and mailing
routine when it issued the notice of liquidation on October 17,
1986.
Additionally, protestant contends that it acted under a
mistake of fact due to clerical errors made by both Customs and
importer's clerk. Protestant maintains that instead of sending
the usual CF 4333-A's, Customs sent protestant a long perforated
computer printout of a a type used internally by the agency.
When the printout was received by a mail clerk it was filed
rather than routed to the import manager and importer's attorney
and, thus, protestant discovered the notice too late to protest
the appraisement of the entries. Moreover, that the printout was
sent to protestant's former address, rather than to the current
address, and the notice was delayed for several weeks. Finally,
that Customs failed to forward duplicate copies of the notice to
the broker and protestant's general counsel as had been done with
all of the previous CF 4333-A's issued by Customs. If this
procedure had been followed, either the general counsel or the
broker would have inquired into the significance of the printout
in time to file a protest.
ISSUE:
Whether or not reliquidation of the subject entries is
required under 19 U.S.C. 1520(c)(1)?
LAW AND ANALYSIS:
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. 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 C.F.R. 173.4. Section 520(c)(1) 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, 554, 622 F. Supp. 1083, 1085 (1985); see
also Universal Cooperatives, Inc. v. United States, 23 Cust. B. &
Dec. No. 29, p. 38, Slip Op. No. 89-89 (Ct. Int'l Trade June 27,
1989).
-3-
Protestant contends that the entries were mistakenly
liquidated because there was an understanding by the importer's
attorneys that Customs would withhold liquidations pending
resolution of questions regarding the method of appraisement.
Protestant relies on CSD 79-386 and Omni U.S.A., Inc. v. United
States, 11 Ct. Int'l Trade 480, 663 F. Supp. 1130, (1987), aff'd,
840 F.2d 912 (Fed. Cir. 1988), cert. denied, 109 S. Ct. 56
(1988) as a basis for this argument. In both of these instances,
entries were liquidated inadvertently. However, in the instant
protest, the Customs district officials have stated that the
appraisement and liquidation were deliberate actions which
carried out the express wishes of the Customs officers involved.
That being the case, the Omni U.S.A. holding and CSD 79-386 are
distinguishable and liquidation of these entries was proper.
It is well-settled law that the importer of record has the
obligation to check the bulletin notice of liquidations posted in
the customhouse at the port of entry to determine the date of
liquidation and to preserve the right to protest. Tropicana
Products, Inc. v. United States, 23 Cust. B. & Dec. No. 24, p.
16, Slip Op. No. 89-64 (Ct. Int'l Trade May 12, 1989). The only
statutorily mandated notice of liquidation is the bulletin
notice. See 19 C.F.R. 159.9(b),(c); Goldhofer Fahrzeugwerk GmbH
& Co. v. United States, 13 Ct. Int'l Trade ___, 706 F. Supp. 892,
895 (1989), aff'd, 885 F.2d 858 (Fed. Cir. 1989); United States
v. Reliable Chemical Co., 605 F.2d 1179, 1183, 66 C.C.P.A. 123,
127, C.A.D. 1232 (1979).
Protestant argues that Customs made a clerical error by
sending out a computer printout, rather than the standard CF
4333-A. Moreover, that the notice was mistakenly sent to
protestant's former address. This same issue was addressed by
the Goldhofer court. In that case, the court held that the
courtesy CF 4333-A that Customs customarily sent to importers was
not mandatory such that an importer could rely on its failure to
receive such notice as reason for its failure to timely protest
liquidation. Nothing in the instant protest requires a different
conclusion. Even though the courtesy notice was sent out in the
form of a computer printout, the notice is clearly labeled
"Courtesy Notice of Entries Scheduled to Liquidate." Therefore,
protestant had a clear indication of Customs intent.
There is no mistake of fact or clerical error in this case
within the meaning of 19 U.S.C. 1520(c)(1). The error in this
case was the broker's failure to perform his duty of finding out
the correct date of liquidation for the subject entries. Such an
error does not entitle the importer to equitable relief. See
Occidental Oil & Gas Co., v. United States, 13 Ct. Int'l Trade
___, Slip Op. No. 89-40 (March 29, 1989).
-4-
HOLDING:
Since a clerical error, mistake of fact or inadvertence in
the entries and liquidation is not manifest from the record, or
established by documentary evidence, you are advised to DENY the
protest.
Sincerely,
John Durant, Director
Commercial Rulings Division