LIQ-9-01-RR:IT:EC 226437 SAJ
Port Director
U.S. Customs Service
1 East Bay Street
Savannah, GA 31401
RE: Application for further review of Protest No. 1703-95-100123; 19 U.S.C. 1514;
19 U.S.C. 1520(c)(1); mistake of fact; reliquidation; Omni
U.S.A. v. United States; Pollak Import-Export Corp. v.
United States; Border Brokerage Co., Inc. v. United States
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the facts and issues
raised, and our decision follows.
FACTS:
This protest has been filed against your denial of a request
for reliquidation of the subject entry pursuant to 19 U.S.C.
1520(c)(1).
Wholesale Supply Company (protestant) entered four-piece
dinnerware sets (merchandise) from France under the following
entry numbers: 110-17xxx00-0;
110-17xxx49-4; 110-17xxx11-9; and 110-17xxx20-2. These four
entries liquidated on July 15, 1994, April 27, 1994, July 15,
1994, and July 15, 1994, respectively. On June 29, 1994, Customs
Form (CF) 29 Notice of Action was issued, rate advancing entry
numbers 110-17xxx00-0 and 110-17xxx20-2. Customs reclassified
the merchandise under 7013.3920/30%, Harmonized Tariff Schedule
of the United States (HTSUS), according to the recommendations in
the lab reports stating that the merchandise did not meet the
criteria for specially tempered glass.
In a letter dated March 30, 1995, which was a cover letter
to a letter dated March 21, 1995 that had not been received by
Customs, protestant timely filed a request for reliquidation
under 19 U.S.C. 1520(c)(1) for three entries. In the March 21,
1995 letter, protestant argued that Customs had erroneously
applied the incorrect testing protocol for determining if the
imported merchandise was tempered glass. Protestant specifically
identifies entry numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9 in the Re: line of the letter dated March 30, 1995.
The March 21, 1995 letter contains the following text in the Re:
line: "Entry Numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9; Request for Reliquidation Under 19 U.S.C. 1520(c),
Transmittal of Samples." The body of the letter dated March 21,
1995 states that reliquidation is requested for the "above-captioned entries." The March 21, 1995 letter contains a section
called "Analysis of the Lab Reports and Worksheets." Under this
section, protestant placed the following entries for each of the
subsections: "A. Entry Number 110-17xxx00-0"; "B. Entry Number
110-17xxx11-9"; and "C. Entry Number 110-17xxx49-4." Samples of
the different styles of merchandise involved for the three
entries were provided.
Protestant also included, with the 1520(c)(1) claim in the
March 21, 1995 request for reliquidation, copies of Customs
Laboratory Reports and worksheets analyzing the merchandise.
Each Laboratory Report specifically identifies the relevant entry
number for the merchandise evaluated. The file does not contain
a lab report for the entry at issue (entry number 110-17xxx20-2).
Customs took action and reliquidated the three entries
identified in protestant's request for reliquidation. However,
because the entry at issue in the instant case (entry number 110-17xxx20-2) was not identified on protestant's request for
reliquidation dated March 30, 1995 and March 21, 1995, nor was it
referenced in the lab reports submitted with that request, it was
not reliquidated with the three identified entries.
This protest, therefore, concerns only one of the initial
four entries. The entry at issue concerns entry number 110-17xxx20-2 (entry 20-2), which was entered on January 8, 1994, and
describes the imported merchandise on CF 7501 as "GLAWARE, OTHER,
TEMPERED." The merchandise was classified under
7013.39.1000/12.50% in the Harmonized Tariff Schedule of the
United States. Entry 20-2 was liquidated on July 15, 1994.
Protestant contends that entry 20-2 was mistakenly omitted
from the March 30, 1995 request for reliquidation. On July 25,
1995, protestant for the first time identified entry 20-2 and
filed a 1520(c)(1) claim requesting reliquidation under file
number 1703-95-200042. Customs denied the reliquidation of entry
20-2 as untimely on August 18, 1995 and this protest for further
review was filed on September 15, 1995.
ISSUE:
Whether Customs properly denied protestant's request to
reliquidate the subject entry under 19 U.S.C. 1520(c)(1).
LAW AND ANALYSIS:
Initially, we note that the subject protest against the
denial of the 1520(c)(1) petition was timely filed pursuant to 19
U.S.C. 1514(c)(3)(B). The petition was denied as untimely on
August 18, 1995, and the protest against this denial was filed on
September 15, 1995, within 90 days from August 18, 1995 as
prescribed under 19 U.S.C. 1514(c)(3)(B). The issue at hand,
therefore, is whether the denial of the 1520(c)(1) petition was
proper.
A protest against the liquidation of an entry under 19
U.S.C. 1514 must be filed within 90 days after the date of
liquidation (19 U.S.C. 1514(c)(3)). Otherwise, the tariff
treatment of merchandise is final and conclusive. Protestant's
request for reliquidation under 19 U.S.C. 1514 was untimely
filed, since more than 90 days had elapsed between the date of
liquidation and the filing of the protest. The entry at issue
was liquidated on July 15, 1994, and was not protested for the
classification of the merchandise until July 25, 1995.
19 U.S.C. 1514 sets forth the proper procedure for an
importer to protest the classification and appraisal of
merchandise when it believes Customs has misinterpreted the
applicable law. 19 U.S.C. 1520(c)(1) is an exception to the
finality of section 1514. Therefore, although the protest under
consideration is untimely under 19 U.S.C. 1514, we note that the
courts have treated untimely protest under 19 U.S.C. 1514 as
seeking relief under 19 U.S.C. 1520(c), if such protest meet the
requirements for claims under 19 U.S.C. 1520(c)(1).
The relief provided for in section 1520(c)(1) is not an
alternative to the relief provided for in the form of protests
under section 1514. Section 1520(c)(1) only affords "limited
relief in situations defined therein." Phillips Petroleum Co. v.
United States, 55 CCPA 7, 11, C.A.D. 893 (1966), quoted in
Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct.
68, 69, C.D. 4874, 496 F. Supp. 1326 (1980). Under section
1520(c)(1), 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, when certain
conditions are met. The error must be adverse to the importer
and manifest from the record or established by documentary
evidence and brought to the attention of Customs within one year
after the date of liquidation.
The conditions required to be met under 19 U.S.C. 1520(c)(1)
are that the clerical error, mistake of fact, or other
inadvertence must be adverse to the importer, manifest from the
record or established by documentary evidence. See ITT Corp. v.
United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994). In the case
at hand, protestant timely filed the section 1520(c)(1) claim for
three out of the four entries set forth under the FACTS portion
of this ruling. However, protestant did not raise the section
1520(c)(1) claim for the entry at issue (entry 20-2), which was
liquidated on July 15, 1994, until July 25, 1995. In this case,
protestant claims that the entry should have been reliquidated
because Customs made an administrative error, in failing to
include the entry 20-2 with the other three identified entries.
Protestant contends that "[t]he alleged error, mistake or
omission was brought to Customs attention within one-year of
liquidations of all the affected entries." See Protestant's
brief dated September 11, 1994, pp. 3-4. Protestant also argues
that the Notice of Action CF 29 referencing the subject entry,
the Laboratory Reports, and the March 21, 1995 and the March 30,
1995 letters manifested this mistake as to the entry at issue
(entry 20-2). However, courts have established that to determine
sufficiency of a claim, consideration is limited to the facts
presented on the face of the complaint and documents appended to
or incorporated in the complaint by reference. See Degussa
Canada Ltd. v. United States, 87 F.3d 1301 (C.A.F.C. 1996).
The relevant documents in the instant case are the March 21,
1995 and March 30, 1995 letters and its attachments, and the
protest for reliquidation claimed under 19 U.S.C. 1520(c)(1)
designated file number 1703-95-200042, dated July 25, 1995. In
reviewing the evidence presented and any documents attached or
incorporated with that protest, the subject entry was not timely
referenced. Please note that the Notice of Action in CF 29 dated
June 29, 1994 does not constitute part of the complaint or
protest.
It is important to note that 19 U.S.C. 1514(c)(1) states
that a "protest must set forth distinctly and specifically each
decision ... as to which protest is made; each category of
merchandise...; and the nature of each objection and reasons
therefor." The relevant implementing regulations contained in 19
C.F.R. 174.13(a) provide that a protest shall contain "[t]he
number and date of the entry, ... [a] specific description of the
merchandise affected by the decision as to which protest is
made,...[t]he nature of, and justification for the objection set
forth distinctly and specifically with respect to each category,
payment, claim, decision, or refusal, ... [and] ... with respect
to [multiple] entries ... the entry numbers, dates of entry, and
dates of liquidation of all such entries should be set forth as
an attachment to the protest."
Courts have precluded importers from raising a new claim of
"uniform existing practice" not specifically included in a timely
protest, regardless of whether Customs was previously aware of an
issue in connection with a protest containing multiple entries.
See Washington International Insurance Co. v. United States, 16
CIT 600, 602-603 (1992), and CR Industries v. United States, 10
CIT 561, 565 (1986) (explaining that [t]he lack of notice in the
protest may have led Customs to believe that the issue had been
abandoned). Consequently, in the circumstances at hand,
protestant failed to validly assert a challenge to the specific
entry at issue.
An examination of the protest and the Laboratory Reports
renders protestant's position unconvincing. Protestant claims
that Customs was timely informed of the error for the entry at
issue by reference. As stated in the FACTS portion of this
ruling, neither the letters dated March 21, 1995 and March 30,
1995 requesting reliquidation, nor the Laboratory Reports, which
were the basis for allowing reliquidation of the other three
entries, reference entry 20-2.
The following text appears in the Re: line of the March 30,
1995 letter, which was simply a cover letter to a letter dated
March 21, 1995 not received by Customs: "Re: Entry Numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9; Request for
Reliquidation Under 19 U.S.C. 1520(c)." The March 21, 1995
letter contains the following text in the Re: line: "Re: Entry
Numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9; Request
for Reliquidation Under 19 U.S.C. 1520(c), Transmittal of
Samples." The body of the letter dated March 21, 1995 states
that reliquidation is requested for the "above-captioned
entries." The March 21, 1995 letter contains a section called
"Analysis of the Lab Reports and Worksheets." Under this
section, protestant placed the following entries for each of the
subsections: "A. Entry Number 110-17xxx00-0"; "B. Entry Number
110-17xxx11-9"; and "C. Entry Number 110-17xxx49-4." Protestant
attached Laboratory Reports to the March 21, 1995 request for
reliquidation. Each Laboratory Report attached to the request
for reliquidation specifically identifies the relevant entry
number for the merchandise evaluated, and none specify entry 20-2.
We find Pollak Import-Export Corp. v. United States, 18 CIT
111 (1994) and Border Brokerage Co., Inc. v. United States, 72
Cust. Ct. 93, 372 F. Supp. 1389 (1974) dispositive. In both of
these cases, the court found that entries not specifically
enumerated in the protest were properly denied by Customs. Each
entry, therefore, is treated as a distinct claim. In the case at
hand, the protest submitted under the letters dated March 21,
1995 and March 30, 1995, simply did not distinctly and
specifically set forth the entry at issue as the category of
merchandise for which the classification, rate of duty, and
liquidation was protested. By the express terms of 19 U.S.C.
1514, the liquidation became final and conclusive regarding the
unprotested entry at issue, and the finality of the liquidation
as to the merchandise was not reopened by the reliquidation of
the other three entries or the filing of the subject protest
against the reliquidation. See Tail Active Sportswear v. United
States 16 CIT 504, 507 (1992) (holding that protestant failed to
properly raise a specific issue for a specific entry thereby
precluding him from raising a valid claim).
Furthermore, even if Customs improperly liquidated the
subject entry, protestant is bound by the time limitations set
forth under 19 U.S.C. 1520(c)(1). The Court of Appeals for the
Federal Circuit (CAFC) addressed a similar situation concerning
section 1520(c)(1) in Omni U.S.A., Inc. v. United States, 6 Fed.
Cir. (T) 99 (1988). In Omni, Customs improperly liquidated
certain entries. However, the importer did not alert Customs to
the error it had committed within one year. The CAFC stated that
"[t]his court has several times held that statutory procedures
for administrative correction of errors ... are binding on all
concerned, including time limitation within which valid actions
may be taken." Omni p. 101. The CAFC went on to hold that
"[s]ince nobody brought the errors to the attention of the
appropriate customs officers within a year of the date of
liquidation, authority to correct them lapsed according to the
terms of section 1520(c)(1), the refusal by customs to correct
them upon timely notice was correct, and was the only course open
to them." Id. We find this decision supportive for determining
that Customs does not possess authority to reliquidate the
subject entry in this instance, because the subject protest was
untimely filed pursuant to 19 U.S.C. 1520(c)(1).
In the case at hand, protestant untimely filed the section
1520(c)(1) claim, since more than one year had elapsed between
the date of liquidation and the filing of the subject protest.
The subject entry was liquidated on July 15, 1994, and protestant
did not raise the section 1520(c)(1) claim until July 25, 1995.
Therefore, protestant's assertion that the subject entry was
erroneously liquidated by Customs is inapplicable. Regardless of
the fact that the original liquidation was erroneous, the subject
protest was untimely filed pursuant to 19 U.S.C. 1514 and 19
U.S.C. 1520(c)(1).
HOLDING:
The request for reliquidation for the entry at issue was not
file within one year after the date of liquidation. Protestant's
request pursuant to 1520(c)(1) was properly denied as untimely.
Consistent with the decision set forth above, you are hereby
directed to deny the subject protest. 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 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 the decision. Sixty days from the date of the decision
of the Office of Regulations 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,
Director,
International Trade Compliance
Division