HQ 226437

March 24, 1997

LIQ-9-01-RR:IT:EC 226437 SAJ

CATEGORY: Liquidation

Port Director

U.S. Customs Service

1 East Bay Street

Savannah, GA 31401

RE: Application for further review of Protest No. 1703-95-100123; 19
U.S.C. 1514;

19 U.S.C. 1520(c)(1); mistake of fact; reliquidation; Omni

U.S.A. v. United States; Pollak Import-Export Corp. v.

United States; Border Brokerage Co., Inc. v. United States

Dear Sir:

The above-referenced protest was forwarded to this office

for further review. We have considered the facts and issues

raised, and our decision follows.

FACTS:

This protest has been filed against your denial of a request

for reliquidation of the subject entry pursuant to 19 U.S.C.

1520(c)(1).

Wholesale Supply Company (protestant) entered four-piece

dinnerware sets (merchandise) from France under the following

entry numbers: 110-17xxx00-0;

110-17xxx49-4; 110-17xxx11-9; and 110-17xxx20-2. These four

entries liquidated on July 15, 1994, April 27, 1994, July 15,

1994, and July 15, 1994, respectively. On June 29, 1994, Customs

Form (CF) 29 Notice of Action was issued, rate advancing entry

numbers 110-17xxx00-0 and 110-17xxx20-2. Customs reclassified

the merchandise under 7013.3920/30%, Harmonized Tariff Schedule

of the United States (HTSUS), according to the recommendations in

the lab reports stating that the merchandise did not meet the

criteria for specially tempered glass.

In a letter dated March 30, 1995, which was a cover letter

to a letter dated March 21, 1995 that had not been received by

Customs, protestant timely filed a request for reliquidation

under 19 U.S.C. 1520(c)(1) for three entries. In the March 21,

1995 letter, protestant argued that Customs had erroneously

applied the incorrect testing protocol for determining if the

imported merchandise was tempered glass. Protestant specifically

identifies entry numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9
in the Re: line of the letter dated March 30, 1995.

The March 21, 1995 letter contains the following text in the Re:

line: \"Entry Numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9;
Request for Reliquidation Under 19 U.S.C. §1520(c),

Transmittal of Samples.\" The body of the letter dated March 21,

1995 states that reliquidation is requested for the \"above-captioned
entries.\" The March 21, 1995 letter contains a section

called \"Analysis of the Lab Reports and Worksheets.\" Under this

section, protestant placed the following entries for each of the

subsections: \"A. Entry Number 110-17xxx00-0\"; \"B. Entry Number

110-17xxx11-9\"; and \"C. Entry Number 110-17xxx49-4.\" Samples of

the different styles of merchandise involved for the three

entries were provided.

Protestant also included, with the 1520(c)(1) claim in the

March 21, 1995 request for reliquidation, copies of Customs

Laboratory Reports and worksheets analyzing the merchandise.

Each Laboratory Report specifically identifies the relevant entry

number for the merchandise evaluated. The file does not contain

a lab report for the entry at issue (entry number 110-17xxx20-2).

Customs took action and reliquidated the three entries

identified in protestant\'s request for reliquidation. However,

because the entry at issue in the instant case (entry number
110-17xxx20-2) was not identified on protestant\'s request for

reliquidation dated March 30, 1995 and March 21, 1995, nor was it

referenced in the lab reports submitted with that request, it was

not reliquidated with the three identified entries.

This protest, therefore, concerns only one of the initial

four entries. The entry at issue concerns entry number 110-17xxx20-2
(entry 20-2), which was entered on January 8, 1994, and

describes the imported merchandise on CF 7501 as \"GLAWARE, OTHER,

TEMPERED.\" The merchandise was classified under

7013.39.1000/12.50% in the Harmonized Tariff Schedule of the

United States. Entry 20-2 was liquidated on July 15, 1994.

Protestant contends that entry 20-2 was mistakenly omitted

from the March 30, 1995 request for reliquidation. On July 25,

1995, protestant for the first time identified entry 20-2 and

filed a 1520(c)(1) claim requesting reliquidation under file

number 1703-95-200042. Customs denied the reliquidation of entry

20-2 as untimely on August 18, 1995 and this protest for further

review was filed on September 15, 1995.

ISSUE:

Whether Customs properly denied protestant\'s request to

reliquidate the subject entry under 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

Initially, we note that the subject protest against the

denial of the 1520(c)(1) petition was timely filed pursuant to 19

U.S.C. 1514(c)(3)(B). The petition was denied as untimely on

August 18, 1995, and the protest against this denial was filed on

September 15, 1995, within 90 days from August 18, 1995 as

prescribed under 19 U.S.C. 1514(c)(3)(B). The issue at hand,

therefore, is whether the denial of the 1520(c)(1) petition was

proper.

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)). Otherwise, the tariff

treatment of merchandise is final and conclusive. 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

liquidation and the filing of the protest. The entry at issue

was liquidated on July 15, 1994, and was not protested for the

classification of the merchandise until July 25, 1995.

19 U.S.C. 1514 sets forth the proper procedure for an

importer to protest the classification and appraisal of

merchandise when it believes Customs has misinterpreted the

applicable law. 19 U.S.C. 1520(c)(1) is an exception to the

finality of section 1514. Therefore, although the protest under

consideration is untimely under 19 U.S.C. 1514, we note that the

courts have treated untimely protest under 19 U.S.C. 1514 as

seeking relief under 19 U.S.C. 1520(c), if such protest meet the

requirements for claims under 19 U.S.C. 1520(c)(1).

The relief provided for in section 1520(c)(1) is not an

alternative to the relief provided for in the form of protests

under section 1514. Section 1520(c)(1) only affords \"limited

relief in situations defined therein.\" Phillips Petroleum Co. v.

United States, 55 CCPA 7, 11, C.A.D. 893 (1966), quoted in

Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct.

68, 69, C.D. 4874, 496 F. Supp. 1326 (1980). Under section

1520(c)(1), 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, when certain

conditions are met. The error must be adverse to the importer

and manifest from the record or established by documentary

evidence and brought to the attention of Customs within one year

after the date of 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. See ITT Corp. v.

United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994). In the case

at hand, protestant timely filed the section 1520(c)(1) claim for

three out of the four entries set forth under the FACTS portion

of this ruling. However, protestant did not raise the section

1520(c)(1) claim for the entry at issue (entry 20-2), which was

liquidated on July 15, 1994, until July 25, 1995. In this case,

protestant claims that the entry should have been reliquidated

because Customs made an administrative error, in failing to

include the entry 20-2 with the other three identified entries.

Protestant contends that \"\[t\]he alleged error, mistake or

omission was brought to Customs attention within one-year of

liquidations of all the affected entries.\" See Protestant\'s

brief dated September 11, 1994, pp. 3-4. Protestant also argues

that the Notice of Action CF 29 referencing the subject entry,

the Laboratory Reports, and the March 21, 1995 and the March 30,

1995 letters manifested this mistake as to the entry at issue

(entry 20-2). However, courts have established that to determine

sufficiency of a claim, consideration is limited to the facts

presented on the face of the complaint and documents appended to

or incorporated in the complaint by reference. See Degussa

Canada Ltd. v. United States, 87 F.3d 1301 (C.A.F.C. 1996).

The relevant documents in the instant case are the March 21,

1995 and March 30, 1995 letters and its attachments, and the

protest for reliquidation claimed under 19 U.S.C. 1520(c)(1)

designated file number 1703-95-200042, dated July 25, 1995. In

reviewing the evidence presented and any documents attached or

incorporated with that protest, the subject entry was not timely

referenced. Please note that the Notice of Action in CF 29 dated

June 29, 1994 does not constitute part of the complaint or

protest.

It is important to note that 19 U.S.C. 1514(c)(1) states

that a \"protest must set forth distinctly and specifically each

decision \... as to which protest is made; each category of

merchandise\...; and the nature of each objection and reasons

therefor.\" The relevant implementing regulations contained in 19

C.F.R. 174.13(a) provide that a protest shall contain \"\[t\]he

number and date of the entry, \... \[a\] specific description of the

merchandise affected by the decision as to which protest is

made,\...\[t\]he nature of, and justification for the objection set

forth distinctly and specifically with respect to each category,

payment, claim, decision, or refusal, \... \[and\] \... with respect

to \[multiple\] entries \... the entry numbers, dates of entry, and

dates of liquidation of all such entries should be set forth as

an attachment to the protest.\"

Courts have precluded importers from raising a new claim of

\"uniform existing practice\" not specifically included in a timely

protest, regardless of whether Customs was previously aware of an

issue in connection with a protest containing multiple entries.

See Washington International Insurance Co. v. United States, 16

CIT 600, 602-603 (1992), and CR Industries v. United States, 10

CIT 561, 565 (1986) (explaining that \[t\]he lack of notice in the

protest may have led Customs to believe that the issue had been

abandoned). Consequently, in the circumstances at hand,

protestant failed to validly assert a challenge to the specific

entry at issue.

An examination of the protest and the Laboratory Reports

renders protestant\'s position unconvincing. Protestant claims

that Customs was timely informed of the error for the entry at

issue by reference. As stated in the FACTS portion of this

ruling, neither the letters dated March 21, 1995 and March 30,

1995 requesting reliquidation, nor the Laboratory Reports, which

were the basis for allowing reliquidation of the other three

entries, reference entry 20-2.

The following text appears in the Re: line of the March 30,

1995 letter, which was simply a cover letter to a letter dated

March 21, 1995 not received by Customs: \"Re: Entry Numbers
110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9; Request for

Reliquidation Under 19 U.S.C. §1520(c).\" The March 21, 1995

letter contains the following text in the Re: line: \"Re: Entry

Numbers 110-17xxx00-0; 110-17xxx49-4; and 110-17xxx11-9; Request

for Reliquidation Under 19 U.S.C. §1520(c), Transmittal of

Samples.\" The body of the letter dated March 21, 1995 states

that reliquidation is requested for the \"above-captioned

entries.\" The March 21, 1995 letter contains a section called

\"Analysis of the Lab Reports and Worksheets.\" Under this

section, protestant placed the following entries for each of the

subsections: \"A. Entry Number 110-17xxx00-0\"; \"B. Entry Number

110-17xxx11-9\"; and \"C. Entry Number 110-17xxx49-4.\" Protestant

attached Laboratory Reports to the March 21, 1995 request for

reliquidation. Each Laboratory Report attached to the request

for reliquidation specifically identifies the relevant entry

number for the merchandise evaluated, and none specify entry 20-2.

We find Pollak Import-Export Corp. v. United States, 18 CIT

111 (1994) and Border Brokerage Co., Inc. v. United States, 72

Cust. Ct. 93, 372 F. Supp. 1389 (1974) dispositive. In both of

these cases, the court found that entries not specifically

enumerated in the protest were properly denied by Customs. Each

entry, therefore, is treated as a distinct claim. In the case at

hand, the protest submitted under the letters dated March 21,

1995 and March 30, 1995, simply did not distinctly and

specifically set forth the entry at issue as the category of

merchandise for which the classification, rate of duty, and

liquidation was protested. By the express terms of 19 U.S.C.

1514, the liquidation became final and conclusive regarding the

unprotested entry at issue, and the finality of the liquidation

as to the merchandise was not reopened by the reliquidation of

the other three entries or the filing of the subject protest

against the reliquidation. See Tail Active Sportswear v. United

States 16 CIT 504, 507 (1992) (holding that protestant failed to

properly raise a specific issue for a specific entry thereby

precluding him from raising a valid claim).

Furthermore, even if Customs improperly liquidated the

subject entry, protestant is bound by the time limitations set

forth under 19 U.S.C. 1520(c)(1). The Court of Appeals for the

Federal Circuit (CAFC) addressed a similar situation concerning

section 1520(c)(1) in Omni U.S.A., Inc. v. United States, 6 Fed.

Cir. (T) 99 (1988). In Omni, Customs improperly liquidated

certain entries. However, the importer did not alert Customs to

the error it had committed within one year. The CAFC stated that

\"\[t\]his court has several times held that statutory procedures

for administrative correction of errors \... are binding on all

concerned, including time limitation within which valid actions

may be taken.\" Omni p. 101. The CAFC went on to hold that

\"\[s\]ince nobody brought the errors to the attention of the

appropriate customs officers within a year of the date of

liquidation, authority to correct them lapsed according to the

terms of section 1520(c)(1), the refusal by customs to correct

them upon timely notice was correct, and was the only course open

to them.\" Id. We find this decision supportive for determining

that Customs does not possess authority to reliquidate the

subject entry in this instance, because the subject protest was

untimely filed pursuant to 19 U.S.C. 1520(c)(1).

In the case at hand, protestant untimely filed the section

1520(c)(1) claim, since more than one year had elapsed between

the date of liquidation and the filing of the subject protest.

The subject entry was liquidated on July 15, 1994, and protestant

did not raise the section 1520(c)(1) claim until July 25, 1995.

Therefore, protestant\'s assertion that the subject entry was

erroneously liquidated by Customs is inapplicable. Regardless of

the fact that the original liquidation was erroneous, the subject

protest was untimely filed pursuant to 19 U.S.C. 1514 and 19

U.S.C. 1520(c)(1).

HOLDING:

The request for reliquidation for the entry at issue was not

file within one year after the date of liquidation. Protestant\'s

request pursuant to 1520(c)(1) was properly denied as untimely.

Consistent with the decision set forth above, you are hereby

directed to deny the subject protest. 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 the decision must be accomplished prior to

mailing the decision. Sixty days from the date of the decision

of 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, Freedom of Information Act and other public

access channels.

Sincerely,

Director,

International Trade Compliance

Division