LIQ-9-01/LIQ-4-01 RR:IT:EC 226364 JS
Port Director of Customs
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607
RE: Protest and Application for Further Review Nos.
3901-95-100452; 3901-95-100453, 3901-95-100454; 19 U.S.C.
Section 1520(c); Countervailing and Antidumping Duty Order;
Ceiling Fans from the People's Republic of China
Dear Sir:
The protests named above were forwarded to this office for
review. We have considered the protestant's claims, and our
decision is as follows.
FACTS:
According to the file, on February 16 and 18, 1995, protests
were lodged by Encon Industries, Inc., regarding the liquidation
of numerous entries of ceiling fans from the PRC which were
assessed a 2.05% dumping duty in accordance with Antidumping No.
A570. Antidumping case A570-807 was split into three numbers:
A570-807, A570-206, and A570-205. Case A570-807 covers all fans
and was used by the U.S. Department of Commerce in all Federal
Register notices. Case A570-206 covers ceiling fans from China.
Case A570-205 covers oscillating fans from China. The entries
covered by this protest involve ceiling fans from China. On March
17, 1995, effective the same day, a notice in 60 FR 14420 revoked
the effect of the antidumping duty order on all entries of the
subject merchandise (ceiling fans from the PRC classifiable in
subheading 8414.51.0030) entered, or withdrawn from warehouse,
for consumption on or after June 5, 1991 (this order was revoked
on the basis that the original petitioner made an affirmative
statement of no interest constituting changed circumstances). Of
the fifteen entries of this merchandise made, twelve were
liquidated on July 8, 1994, and three were liquidated on October
21, 1994.
Customs issued an administrative message dated September 21,
1993 (No. 3264111), which instructed Customs personnel to
liquidate all entries under A570-206, on the basis that the
Department of Commerce had not received a request for an
administrative review of the antidumping duty finding/order on
the merchandise at issue. Subsequently, another administrative
bulletin issued by Customs on April 3, 1995 (No. 5093111),
terminated the suspension of liquidation of ceiling fans from the
PRC and ordered liquidation of all suspended entries without
regard to antidumping duties.
A letter from Encon Industries which accompanied the protest
and was dated February 8, 1995, requested that the subject
entries be reviewed and approved for reliquidation pursuant to
the revocation of the antidumping duty order. Specifically,
protestant claimed that the statement made in the September 21,
1993, internal Customs memorandum was erroneous in its facts and
therefore materially incorrect, since the original petitioner,
Lasko Metal Products, had indeed requested a review of the
antidumping duty order.
On February 16 and 18, 1995, the protestant filed the protests
under consideration and applied for further review. Further review
was granted on August 5, 1995.
ISSUE:
1 ) Were the protests at issue timely filed?
LAW AND ANALYSIS:
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)). 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 the liquidation and
the filing of the protest. All of the protested entries were
liquidated on either July 8, or October 21, 1994, both of which
were more than 90 days before the protests were filed.
Although the protests under consideration are untimely as
protests under 19 U.S.C. 1514, we note that the courts have
treated untimely protests under 19 U. S.C. 1514 as seeking relief
under 19 U SC. 1520(c), if such protests meet the requirements
for claims under 19 U.S.C. 1520(c)(1). This provision allows
Customs to reliquidate an entry to correct a clerical error,
mistake of fact, or other inadvertence, not amounting to an error
in the construction of the law, when certain conditions are met.
The courts have frequently interpreted section 1520(c)(1),
defining a "clerical error [as] a mistake made by a clerk or
other subordinate, upon whom devolves no duty to exercise
judgement, in writing or copying the figures or in exercising his
intention" (see, PPG Industries, Inc., v. United States, 7 CIT
118, 124 (1984), and cases cited therein). It has been held that
a mistake of fact exists where a person understands the facts to
be other than they are, whereas 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" (Hambro
Automotive Corporation v. United States. 66 CCPA 113, 118, C.A.D.
1231, 603 F. 2d 850 (1970), quoted in Concentric Pumps, Ltd., v.
United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986); see
also, C.J Tower & Sons of Buffalo, Inc. v. United States, 6 8
Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp. 1395 (1972), affd, 61
CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), and Universal
Cooperatives, Inc. v. United States, 13 CIT 516, 518, 715 F.
Supp. 1113 (1989)). Inadvertence has been defined as "an
oversight or involuntary accident, or the result of inattention
or carelessness, and even as a type of mistake" (Occidental Oil &
Gas Co. v. United States, 13 CIT 244, 246, (1989), quoting C.J
Tower & Sons of Buffalo, Inc. v. United States, supra. 6 8 Cust.
Ct. at 22. In Everflora Miami, Inc., v. United States, CIT Slip
Op. 95-98, Customs Bulletin and Decisions of April 26, 1995, vol.
29, no. 17, p. 101,104, the Court stated that "[although
plaintiff did not specifically claim that it was seeking relief
under [section] 1520(c)(1), in compliance with ITT Corp. v.
United States, 2 4 F. 3d 1384 (Fed. Cir. 1994)] the gravamen of
plaintiffs claim is spelled out with sufficient particularity in
the protests and attached documents to allow remedial action for
mistake of fact or other inadvertence under [section]
1520(c)(1)."
Thus, the appropriate remedy in this case may be to treat the
CF 19 as a notice of the alleged error, mistake of fact or
inadvertence under 19 U. SC. 1520(c)(1), based on the information
provided on the CF 19. In this instance, that is, the protest
specifically cited 19 U.S.C. 1520(c), as compared with Everflora,
in which that was not the case.
It is the obligation of the protestant, nonetheless, to
identify the "error" which the protestant believes caused the
allegedly erroneous 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, and brought to the attention of Customs within one year
after the date of liquidation of the entry. See, ITT Corp. v.
United States, 2 4 F. 3d 1384, 1387 (Fed. Cir. 1994): "With
regard to substantiation, [section] 1520(c)( 1 ) requires the
importer to establish the asserted inadvertence through
documentary evidence submitted to the appropriate customs
officer, unless the inadvertence is manifest from the record." In
the ITT Corp. case, the Court went on to note that such
substantiating evidence may be submitted after the I year period
provided for in section 1520(c)(1) and even at the time of trial
de novo before the Court of International Trade (24 F. 3d at
1388-1389).
Basically, the protestant in this case claims that the
entries should have been reliquidated because Customs made an
administrative error, in that, through inadvertence or mistake of
fact, failed to continue the suspension of liquidation of Encon's
entries during the relevant periods.
Thus, although these protests must be DENIED as to the
entries liquidated on July 8 and October 21, 1994, your office
must decide the request for reliquidation made by Encon under 19
U.S.C. 1520(c)(1), and provide Encon with written notice of
Customs action on that matter.
If you deny the request for reliquidation, you must notify
Encon of its right to protest that denial under 19 U.S.C.
1514(a)(7).
With this letter we are enclosing copies of all materials
which you may not have with the protest file. These consist in
large part of copies of the electronic directives issued by the
Trade Compliance Division. You should coordinate with the Trade
Compliance Division in acting on the 520(c)(1).
HOLDING:
You are hereby directed to DENY these protests in full. You
must decide, however, the request for reliquidation made by Encon
Industries, Inc., under 19 U. S.C. 1520(c)(1). If that request
for reliquidation is denied, you must notify Encon of its right
to protest that denial under 19 U.S.C. 1514(a)(7).
In accordance with Section 3A(11)(b) of Customs Directive
099-3550-065 dated August 4, 1993 (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 the public
via the Diskette Subscription Service, Lexis, under the Freedom
of Information Act, and through other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division