CON-2-07-CO:R:C:E 223871 SR
District Director of Customs
US Customhouse
1 East Bay Street
Savannah, GA 31401
RE: Application for Further Review of Protest No. 1704-91-
100348
Dear Sir:
The above-referenced protest was forwarded to our office on
Application for Further Review of Protest No. 1704-91-100348,
dated December 5, 1991.
FACTS:
An aircraft engine was entered on behalf of U.S. Air at the
port of Atlanta, which is in the Customs District of Savannah.
(Other aircraft parts were also entered but are not included in
this protest.) U.S. Air states that they were under the belief
that they had a Civil Aircraft blanket declaration on file at the
district and therefore the engine would enter duty-free. Upon
receipt of a bill for duty on the engine for the amount of
$36,456.80, U.S. Air discovered that their Customs broker had not
filed the blanket agreement that they had prepared.
U.S. Air states that it prepared Civil Aircraft Agreement
blanket certificates for Savannah and five other Customs
districts, which were filed through Customs brokers. U.S. Air
dismissed the broker that it had been using in Savannah and they
were unaware that the broker had been filing individual entries
rather than using the blanket entry that had been prepared. U.S.
Air filed a protest under 19 U.S.C. 1514 which was denied by the
port and sent up to Headquarters for further review as a 19
U.S.C. 1514(7) protest.
ISSUE:
Whether the aircraft engine may be reliquidated according to
the terms of the Civil Aircraft Agreement because of a mistake of
fact under 19 U.S.C. 1520(c)(1).
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LAW AND ANALYSIS:
The Agreement of Trade in Civil Aircraft was implemented by
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), effective January 1, 1980. On June 7, 1984, 19 CFR
Part 10 was amended to include section 10.183, which 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). 19 CFR 10.183(c)(2), 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.
19 CFR 10.112 provides that documentation for free entry
that was not filed at the time of entry may be filed at any time
prior to liquidation or before liquidation becomes final.
However, 19 CFR 10.183 specifically states that the 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.
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).
In pertinent part section 1520(c)(1) provides as follows:
(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
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; . . .
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In order to bring a claim under 19 U.S.C. 1520(c)(1), the
mistake made must be one of fact not a mistake of law. These
terms are defined in C.J. Tower & Sons of Buffalo, Inc. v. United
States, 68 Cust. Ct. 17, C.D. 4327, 336 F. Supp. 1395 (1972),
aff'd 499 F.2d 1277, 61 CCPA 90, C.A.D. 1129 (1974). A mistake
of fact is defined as any mistake except a mistake of law; a
mistake which takes place when some fact which indeed exists is
unknown, or a fact which is thought to exist, which in reality
does not exist. 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.
To support a claim under 19 U.S.C. 1520(c)(1) the importer
must show clear and convincing evidence that all merchandise
entered was intended to be covered by a blanket certification.
(See HRL 223172, dated August 15, 1991.)
In the case at issue U.S. Air was aware of the legal
requirements, that a Civil Aircraft certification must be
submitted to Customs, but state they were mistaken in the belief
that the blanket certification agreement they had signed had been
submitted to Customs by their previous broker. To support this
fact that they have submitted copies of signed blanket Civil
Aircraft Agreements that they state have been filed in 5 other
Customs districts.
Although U.S. Air states that a signed Civil Aircraft
Agreement was sent to their broker to be filed with the Customs
district they should have been aware that they did not have an
agreement filed with Customs. When Customs receives a blanket
agreement, it is signed by Customs and the company is notified
directly. Even if an agreement is submitted through a broker
Customs deals directly with the company since the company has the
duty to keep records that the imported merchandise will be used
as civil aircraft for 5 years. Because U.S. Air is in the
business they should be aware of the procedures.
U.S. Air included in the protest submission a copy of the
blanket agreement that was submitted to the district office in
Savannah. The document that was submitted would not have been
accepted by Customs and would have been returned because it
states that it covers all entries made by U.S. Air that go
through National Airport. National Airport is not an
international airport and it is not in the same district and
therefore would not be valid. U.S. Air also submitted copies of
agreements that they stated were submitted to the other
districts. The copies of agreements for Cleveland, Buffalo, Los
Angeles, and one of the agreements labeled Philadelphia all state
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that they are for entries at National Airport. Therefore, they
have not shown that they have valid blanket agreements at all
these other ports as they stated.
HOLDING:
U.S. Air did not provide clear and convincing evidence to
show that a mistake of fact did occur under 19 U.S.C. 1520(c)(1).
The protest is denied. 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 Durant, Director
Commercial Rulings Division