HQ 225194 - Protest 2704-93-103738; specially tempered glassware; 19 U.S.C. 1520(c)(1); liquidation of entry is not an error or mistake when the existence of instructions is unknown to a Customs official unless this lack of knowledge caused an error or mistake in liquidation. - United States International Trade Commision Rulings

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HQ 225194

July 28, 1994

LIQ-9-01-CO:R:C:E 225194 AJS

CATEGORY: LIQUIDATION

District Director of Customs
300 S. Ferry Street, Terminal Island
San Pedro, California 90731

RE: Protest 2704-93-103738; specially tempered glassware; 19 U.S.C. 1520(c)(1); liquidation of entry is not an error or mistake when the existence of instructions is unknown to a Customs official unless this lack of knowledge caused an error or mistake in liquidation.

Dear Sir:

This is our decision in Protest 2704-93-103738, dated December 2, 1993, concerning the reliquidation of an entry under 19 U.S.C.

FACTS:

On June 2, 1993, the import specialist classified merchandise from the subject entry in accordance with a Customs laboratory report, issued a Notice of Action to the importer, marked the appropriate notations on the Customs Form (CF) 7501 and forwarded the entry for liquidation.

On June 4, 1993, Customs published a notice in the Federal Register, 55 FR 31786, inviting comment on the use of polarized light to test the subject merchandise. The import specialist claims that administrative instructions were concurrently issued to withhold action regarding the subject merchandise. This office located instructions from the National Import Specialists (NIS), dated June 22, 1993, which stated "[i]f you receive entries or protests in which claims are made that particular products are specially tempered, it is advisable to obtain samples and send them to the laboratory for analysis (whether or not you have previous lab reports on these items)."

On June 25, 1993, the subject entry was liquidated based on the import specialist's instructions of June 2.

ISSUE:

Whether liquidation of the subject entry was due to a clerical error, mistake of fact or other inadvertence correctable pursuant to 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

Initially, we note that this protest was timely filed according to 19 U.S.C. 1514(c)(2)(B). The date of the decision as to which protest is made was November 9, 1993, and this protest was filed on December 2, 1993. In addition, the refusal to reliquidate an entry is a protestable matter pursuant to 19 U.S.C. 1514(a)(7).

19 U.S.C. 1520(c)(1) provides that 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, 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." The protestant requests reliquidation of the subject entry under section 1520(c)(1).

A "clerical error" has been stated by the courts to be "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." PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984). A "mistake of fact" has been described as "a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist." C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp. 1395, 1399 (1972), aff'd 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974). Inadvertence is a somewhat broader term, and has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake." Id.

In this case, the import specialist forwarded the entry for liquidation on June 2, 1993. The import specialist's decision was based on a Customs laboratory report of May 24, 1993, which concluded that "an opaque white dinner plate marked 'arcopal france' is not toughened (specially tempered) in accordance with Treasury Decision 92-44 dated April 28, 1992." No evidence was submitted to indicate that this
laboratory report was in error. On June 22, 1993, the NIS issued instructions to import specialists advising that entries of the subject merchandise be resubmitted for laboratory analysis. These instructions did not specifically require the withholding of liquidation. On June 25, 1993, Customs liquidated the subject entry based on the import specialist's instructions of June 2. The Customs official who liquidated the subject entry was not aware of the June 22 instructions. Even if the customs official had been aware of these instructions, no evidence was submitted to establish that the liquidation would then have been in error. Customs has previously stated that if evidence showed that a Customs officer was unaware of the existence of liquidation instructions, and that lack of knowledge caused the Customs officer to err, that error would be correctable under section 1520(c)(1). HQ 223611 (January 21, 1993). In this case, the protestant has not established that a lack of knowledge caused an error or mistake in the liquidation of the subject entry. Therefore, the subject entry may not be reliquidated pursuant to 19 U.S.C. 1520(c)(1).

HOLDING:

The protest is denied. The protestant has not established that lack of knowledge of instructions caused an error or mistake in the liquidation of the subject entry. Therefore, reliquidation of the entry is not permissible pursuant to 19 U.S.C. 1520(c)(1).

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, with the Customs Form 19, 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 of the decision. Sixty days from the date of the 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 the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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