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HQ 223755

October 13, 1992

LIQ-9-01 CO:R:C:E 223755 C


District Director of Customs
U.S. Customs Service
7911 Forsythe Blvd.
Suite 625
St. Louis, Missouri 63105

RE: Request for internal advice concerning reliquidation to correct a mistake of fact, clerical error, or inadvertence; failure to file a timely protest under 19 U.S.C. 1514 is not correctable mistake or inadvertence; 19 U.S.C. 1520(c)(1)

Dear Sir:

This responds to your request for internal advice concerning the referenced subject (PRO-1-ADD:CO DKH; February 21, 1992). We have reviewed the materials submitted and our response follows.


The facts as we understand them are as follows: A company imported ceramic steins at a duty rate of 13.5% based on a Customs Headquarters ruling (HRL 089243). In response to a protest and application for further review, Customs Headquarters reversed this ruling, ruling instead that the duty rate is free (HRL 087732). Based on this new ruling, the company filed various timely protests in order to obtain reliquidations in accordance with the new ruling. Regarding the filing of these protests, the company reported that it was the broker's responsibility to transmit to the company's attorney the data pertaining to the entries to be protested. That information included the date of liquidation. As the protest filing deadline approached, the attorney, using this information, would file timely protests. The company asserts that with respect to one entry, the information transmitted from the broker to the attorney was incorrect. The date of liquidation provided by the broker was June 17, while the correct date was June 7. It is alleged that the broker made a mistake in transcribing the liquidation date that was included in the information provided to the attorney and that this mistake led to the failure to file a protest covering this one entry. (The attorney's employee learned of the mistake prior to filing a protest, and since it was already too late, the protest was not filed.) The company asserts that this mistake is correctable under 19 U.S.C. 1520(c)(1) as a mistake of fact or inadvertence.


Is a failure to file a protest in a timely manner a correctable mistake or inadvertence under 19 U.S.C. 1520(c)(1)?


The Customs laws provide a remedy for errors in the liquidation of entries. Under 19 U.S.C. 1514, Customs decisions, such as those pertaining to classification, valuation, and duty assesement, among others, can be protested if brought to the attention of the appropriate Customs officer within 90 days of the date of liquidation. 19 U.S.C. 1514(a) and 1514(c)(2)(A). Failure to file a timely protest renders the liquidation binding on the importer and the government. In addition, and quite apart from the protest procedure of 19 U.S.C. 1514, the Customs laws provide for the correction of clerical errors, mistakes of fact, or other inadvertences that do not amount to errors in the construction of a law. Under 19 U.S.C. 1520(c)(1), such mistakes can be corrected by reliquidation if brought to the attention of the appropriate Customs officer within one year of the date of liquidation. This reliquidation provision is not intended to be a simple alternative for importers who fail to file timely protests. Instead, it is intended to apply in limited circumstances (Phillips Petroleum Co. v. United States, 54 CCPA 7, C.A.D. 893 (1966) and Godchaux-Henderson Sugar Co. v. United States, 85 Cust. Ct. 68, C.D. 4874 (1980)) and only when a correctable error is established either on the record or by submitted documentary evidence.

The company argues that the transcription error commited by the broker - which led to expiration of the 90 day period before a protest could be filed - is an error correctable under 19 U.S.C. 1520(c)(1). In its letter of December 20, 1991, the company's counsel cites three Customs Headquarters rulings and urges that two of them be followed and the other be overruled. The ruling letter urged to be overruled is 725690, dated April 8, 1986. This case involved facts similar to those here. A broker was to provide an importer's attorney copies of entries that were to be protested. Using this information, the attorney was to file timely protests. The broker's employee mistakenly placed the entry copies in a file folder and never sent them to the attorney. Consequently, protests were not filed for some entries. As to the affected entries, instead of filing protests, the attorney filed a request for reliquidation under 19 U.S.C. 1520(c)(1), identifying the broker's employee's mistake as the correctable error. This request was denied on the grounds that a failure to file a timely protest is not correctable under section 1520(c)(1). The importer then filed a protest and application for further review under 19 U.S.C. 1514(a)(7). In upholding the denial of the section 1520(c)(1) request for reliquidation, Customs stated the following:

[The] issue is whether the failure to file a protest can be corrected by way of 19 U.S.C. 1520(c)(1). We have held that the filing of a protest is a Customs transaction within the meaning of the statute (case 726634), and that the denial of a protest is a Customs transaction (case 709992). The question is not without difficulty, especially in light of the Tower case [C.J. Tower & Sons v.
United States, 68 Cust. Ct. 17, C.D. 4327, 336 F. Supp. 1395 (1972), aff'd sub nom.
United States v. C.J. Tower & Sons, 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974).] and numerous instances in which reliquidation has been authorized where documentation has not been timely filed (e.g., when truck drivers fail to inform Customs when drawback merchandise is being exported.) But the requirement to file a protest within 90 days of an entry's liquidation is statutory and of a jurisdictional nature differing, we believe, from provisions in Customs
Regulations or instructions. Accordingly, we hold that where the error sought to be corrected is the untimely filing of a protest under 19 U.S.C. 1514, rather than an error in the protest itself, Customs has no authority to reliquidate the entries covered by the protest under 19 U.S.C. 1520(c)(1). (Emphasis added.)

The two ruling letters that counsel argues should be followed in this case are the two cited in the above quotation: 726634 and 709992. These rulings stand for the propositions attributed to them above, the former recognizing the filing of a protest as a Customs transaction and the latter recognizing the denial of a protest as a Customs transaction within the meaning of 19 U.S.C. 1520(c)(1). (More specifically, 726634 held that a request to amend (modify or correct) a protest falls within the meaning of "other customs transaction" in section 1520(c)(1), such that the denial of such a request could properly be the subject of a reliquidation request under the statute.) Counsel argues that application of these two rulings to the facts here will yield the conclusion that the failure to file a timely protest is correctable under section 1520(c)(1). Counsel further asserts that application of these rulings will necessitate the overruling of ruling 725690.

We are unpersuaded by counsel's argument. The two rulings are significantly different, and thus distinguishable, from the instant case, as well as from 725690. In both cases, protests were filed in a timely manner and were denied, neither on the basis of timeliness. In the instant case (as well as 725690), a protest was never filed. Because of the distinguishing fact situations of these cases, 725690 did not overrule them. They are plainly inapplicable to the instant set of facts.

We conclude that the correct treatment of the issue presented was expressed in Customs ruling 725690. The filing of a timely protest is jurisdictional in nature and thus mandatory. The failure to meet the deadline is not correctable under section 1520(c)(1). Further, the sole remedy of 19 U.S.C. 1520(c)(1) is reliquidation. An error, regardless of its nature, is outside the scope of section 1520(c)(1) if the requested remedy is something other than the act of reliquidation of an entry. Here, the protestant is requesting a remedy that Customs does not have the authority to provide: accepting as timely a protest never filed. Further still, the alleged error here - a transcription error - is in a written communication between a broker and the importer's attorney. This is not the completion or filing of a Customs document; it is not a customs transaction. Thus, the alleged error does not fall within the ambit of section 1520(c)(1) as an error in either an entry, liquidation, or other customs transaction. Of course, the denial of a section 1520(c)(1) reliquidation request is protestable under 19 U.S.C. 1514(a)(7), and the denial of such a protest is sufficient condition precedent for the filing of a claim in the U.S. Court of International Trade. 19 U.S.C. 1514(a) and 19 C.F.R. 174.31.

Finally, PROTESTANT submitted additional argument by fax transmission dated October 1, 1992. Therein, PROTESTANT, through counsel, argues that the instant set of facts is distinguishable from the facts decided upon in Godchaux-Henderson Sugar Co. v. United States, 85 Cust. Ct. 68, C.D. 4874 (1980), and thus the instant case should be decided differently than was Godchaux.

In Godchaux, the importer failed to enter its shipment duty free under the Generalized System of Preferences before the effective date of an executive order that made the importation ineligible for duty free treatment (prior to that effective date, the shipment was eligible for duty free treatment). The importer alleged that clerical error or mistake was responsible for this failure. The United States Customs Court pointed out that this mistake - failing to file a consumption entry prior to the effective date - was not an error in an entry, liquidation, or other customs transaction. The court stated that there was no error in the entry that was filed. Thus, the alleged error is not within the scope of section 1520(c)(1).

PROTESTANT here asserts that since the instant case involves a mistake in the filing of a protest rather than a mistake in an entry, Godchaux is inapplicable. We disagree. First, as the court pointed out, there was no mistake in the entry. Id. at 75. Second, the court stated that the failure of the importer to file the entry by the deadline was not within the scope of section 1520(c)(1). Id. at 74. The court drew a distinction between a correctable mistake (under the statute) in an entry filed timely, or before the deadline, and a simple failure to file the entry before the deadline. Id. at 75. Through analogy, Godchaux supports the proposition that a correctable error in a timely filed protest may be remediable under section 1520(c)(1), but a simple failure to file a protest on time is not remediable since it is not within the scope of that section.


An error or mistake that causes a failure to file a timely protest within 90 days of the date of liquidation is not correctable under 19 U.S.C. 1520(c)(1). The 90 day filing requirement is jurisdictional in nature and thus mandatory. Further, 19 U.S.C. 1520(c)(1) provides one specific remedy: reliquidation of an entry. To declare untimely filed protests, or protests never filed, to be timely is not a remedy authorized under section 1520(c)(1).


John Durant, Director

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