LIQ-9-01-CO:R:C:E 224113 SR
District Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266
RE: Application for Further Review of Protest No. 3801-2-101792;
Protest of 19 U.S.C. 1520(c)(1) denial; 19 CFR 173.3(a); Omni
U.S.A. v. United States.
Dear Sir:
The above referenced protest was forwarded to our office on
Application for Further Review of Protest No. 3801-2-101792,
dated June 3, 1992. We have considered the facts and the issues
raised; our decision follows.
FACTS:
The protestant entered identical merchandise in the ports of
Buffalo and Detroit. The merchandise entered in Buffalo was
liquidated under subheading 8707.99.5090, Harmonized Tariff
Schedule of the United States (HTSUS), which provides for
automobile parts. The protestant filed an Application for
Further Review claiming that the merchandise should be classified
under subheading 3815.12.00, HTSUS, which provides for reaction
initiators. This protest was allowed on September 25, 1991, in
HQ 089565. The merchandise was entered in Detroit between
February 27 and June 6, 1990 and was liquidated on July 13, 1990
and August 3, 1990. Therefore, the Detroit entries were
liquidated either 6 or 27 days after the Protest/Application for
Further Review was filed in Buffalo. The merchandise in Detroit
was also liquidated under subheading 8708.99.5090, HTSUS, as
automobile parts.
The protestant filed a Protest and Application for Further
Review No. 3801-0-003734 on December 17, 1990 concerning the
merchandise entered in Detroit. This was denied on January 31,
1991, because the classification was correct as liquidated. On
July 23, 1991, civil action (CIT No. 91-07-00526) was commenced
in the Court of International Trade contesting the denial of
Protest No. 3801-0-003734. This pending court case is based
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strictly on the classification issue and not the mistake of fact
issue. On December 16, 1991, the protestant filed a request for
reliquidation pursuant to 19 U.S.C. 1520(c)(1) covering the
merchandise entered in Detroit. This was denied on March 19,
1992, because no inadvertence, mistake of fact, or clerical error
was shown and it was not timely. The current protest was filed
on June 3, 1992.
ISSUE:
Whether the merchandise at issue should be reliquidated
under 19 U.S.C. 1520(c)(1).
LAW AND ANALYSIS:
Reliquidation because of a mistake of fact is provided for
in 19 U.S.C. 1520(c)(1) as follows:
(c) Notwithstanding a valid protest was not filed, the
appropriate customs officer may, in accordance with
regulations prescribed by the Secretary, 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.
In the case at issue, the claim under 1520(c)(1) was denied
because no inadvertence, mistake of fact or clerical error was
shown and because the request for reliquidation was untimely.
The protestant argues that the protest is timely because it was
filed within 90 days from the refusal to reliquidate under
section 1520(c)(1), as provided in 19 CFR 174.11(g). 19 CFR
174.11(g) provides that the decision of the district director to
refuse to reliquidate an entry under section 1520(c) can be
protested. In this case the 1520(c)(1) protest was denied by the
district director on the grounds that it was not timely filed and
no inadvertence, mistake of fact or clerical error was shown. We
must confirm the denial because the 1520(c)(1) claim was not
timely filed and no mistake of fact was shown.
Even if the 1520(c)(1) claim was timely it would be denied
on the merits. 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
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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.
The protestant argues that the lack of knowledge of the
Detroit district that the protestant protested liquidations of
Buffalo entries of the same merchandise was a mistake of fact
under 19 U.S.C. 1520(c)(1). The Detroit entries were liquidated
on July 13, 1990 and August 3, 1990. The Buffalo protest was
decided September 25, 1991.
In pertinent part, 19 U.S.C. 1520, authorizes Customs to
reliquidate an entry to correct a mistake of fact if that mistake
is brought to the attention of Customs within one year after
liquidation. From August 3, 1990 to August 3, 1991, no error
existed so as to warrant reliquidation of the Detroit entries.
Under 19 U.S.C. 1504(b), Customs could have extended the
liquidation of the Detroit entries. However, in not exercising
that authority there was no creation of a mistake of fact within
the scope of 19 U.S.C. 1520(c)(1). See Omni U.S.A. Inc. v.
United States, 11 CIT 480 (1987), affd. 6 Fed. Cir. (T) 99
(1988), cert. den. 109 U.S. 56.
Several court cases were discussed in a meeting with the
protestant and were also addressed in the protestant's recent
submission. The protestant feels that the case United China &
Glass Co. v. United States, 53 Cust. Ct. 68 (1964), is irrelevant
to the facts at issue. In the case of United China & Glass a
protest was filed with the port of San Francisco to protest a
liquidation made by the port of New Orleans. The protests were
forwarded to New Orleans but were received after the protest
period had expired. Because New Orleans is in a separate Customs
jurisdiction than San Francisco the court held that the protest
was untimely because it must be received by the collector whose
decision is protested. This case is relevant because it shows
that a protest filed in Buffalo has no effect on merchandise
entered in Detroit. The protestant had the obligation to file a
protest in Detroit if he wanted to protest the liquidation in
Detroit.
In Wolfe Barth Co., Inc. v. United States, 81 Cust. Ct. 127
(1978), an importer erroneously filed a protest with the Port of
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New York instead of the correct port, Philadelphia. The Port of
New York erroneously accepted the protest. The Port of New York
discovered the error and returned the protest to the importer
after the protest period had expired. The protestant had
provided no evidence that the Port of New York had accepted or
held the protest beyond the time period intentionally. The court
in this case followed the reasoning of the court in United China
& Glass that the filing of protests, by whim or negligence, with
one or another of the many collectors in the United States is not
what is intended by the statutes.
The protestant also states that the case Noury Chemical
Corporation v. United States, 4 C.I.T. 68 (1982), has no bearing
on the ruling at issue. In this case an importer who wished to
file a protest sent a letter to Customs Headquarters with a copy
sent to the port where the protest should have been filed, the
port of Buffalo. Besides the fact that the letter was not filed
as a protest with the appropriate district director, the importer
also inadvertently omitted one entry (there were eight entries,
information for seven entries was provided). The letter was
found to be insufficient to constitute a protest.
The Noury Chemical case further supports the fact that if
the protestant wanted to protest the actions of the port of
Detroit, the protestant had to file a protest with the port of
Detroit. Filing of a protest with the port of Buffalo has no
effect on the classification or liquidation of entries in
Detroit.
HOLDING:
The request for reliquidation because of a mistake of fact
under 19 U.S.C. 1520(c)(1) was not timely filed. This protest
should be denied in full. A copy of this decision should be
attached to the Form 19, Notice of Action, to be sent to the
protestant.
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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this decision, 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 to
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the public via the Diskette Subscription Service, Lexis, Freedom
of Information Act and other public access channels.
Sincerely,
John A. Durant
Director
Commercial Rulings Division