HQ 227442

June 26, 1998

LIQ-9-01 RR:CR:DR 227442 CB

CATEGORY: Entry/Liquidation

Port Director of Customs

U.S. Customs Service

1901 Cross Beam Drive

Charlotte, NC 28217

ATTN.: Director, Trade Compliance

RE: Protest and Application for Further Review No. 1512-97-100062;
clerical error, mistake of fact, or other inadvertence;

19 U.S.C. §1520(c)(1); 19 U.S.C. §1514; sufficiency of evidence

Dear Sir or Madame:

The above-referenced protest was forwarded to this office for

further review. We have considered the evidence provided and

the arguments made by the Protestant, as well as Customs

records relating to this matter. Our decision follows.

FACTS:

The subject protest covers two entries with an entry date

of March 15, 1995. The entries were liquidated on June 30,

1995\. According to protestant\'s submission dated September 23,

1997, at about the time these entries were being prepared in

Charlotte, protestant was also clearing two entries for the

same product in Los Angeles. Both of these entries included

the Special Preference Indicator \"L\". We assume that those

entries were prepared by a different clerk. According to

protestant, the clerk in the Charlotte office had never handled

this particular product before. In such cases, it was

protestant\'s procedure for an entry preparer to verify the

classification of a product by reviewing the electronic product

database. Absent a record in the product database, an entry

preparer should review prior shipments of the same product for

the same consignee. Protestant asserts that, given the complex

nature of chemicals and the difficulty in properly classifying

them, an entry preparer would not attempt classification

without consulting available records.

Per protestant, notations on the file folder indicate that

the clerk did in fact review the available records (i.e., the

Los Angeles entries), thereby becoming aware of the correct

classification. According to protestant, it is clear from the

record that the clerk was aware of the correct classification

of the product, as demonstrated by the Los Angeles entries.

Protestant maintains that the clerk simply failed to follow

through when notating the

commercial invoice and then compounded the error when

keypunching the classification into the computer system.

On March 14, 1996, according to protestant, during a

routine review of entries protestant\'s National Account Manager

discovered the error. A section 520(c) request for

reliquidation was filed on April 5, 1996. On August 9, 1996,

your office denied the request. On September 5, 1996,

protestant sent the responsible Import Specialist a letter

requesting review and reconsideration of that denial.

Protestant also sent a follow-up letter on December 20, 1996.

The subject protest was filed on January 10, 1997.

Protestant has been afforded numerous opportunities to

fully document its claimed mistake of fact. Specifically, by

way of a telephone call on December 4, 1997, the protestant

was advised what evidence was required. This call was

followed-up with another telephone call to the same individual

on February 3, 1998. During this second call, protestant\'s

representative again indicated that she would be making an

additional submission within that week. There was a final

telephone call on May 6, 1998 from this office to protestant\'s

representative. Once again, this individual indicated that she

would be making an additional submission. During this final

telephone call she was again advised of the discrepancies

contained in the record. To date, no additional submission has

been made. Thus, we are proceeding to rule on the record

before this office.

ISSUE:

May relief be granted under 19 U.S.C. §1520(c)(1) in this

protest?

LAW AND ANALYSIS:

Initially, we note that both the request for reliquidation

under 19 U.S.C. §1520(c)(1) and the protest of the denial of

that request, under 19 U.S.C. §1514, were timely filed.

Under 19 U.S.C. §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 and adverse to the importer, when certain conditions are

met. Section 1520(c)(1) has frequently been interpreted by the

Courts. It has been stated that \"\[a\] clerical error is 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 stated that: \"\[M\]istakes of

fact occur in instances where either (1) the facts exist, but

are unknown, or (2) the facts do not exist as they are believed

to \[and\] \[m\]istakes of law, on the other hand, occur where the

facts are known, but their legal consequences are not known or

are believed to be different than they really are\" (Executone

Information Systems v. United States, 96 F.3d 1383, 1386 (Fed.

Cir. 1996) (emphasis in original), citing Hambro Automotive

Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231,

603 F.2d 850 (1979); see also, Degussa Canada Ltd. v. United

States, 87 F.3d 1301 (Fed. Cir. 1996)). Inadvertence has

been defined as \"an oversight or involuntary accident, or the

result of inattention or carelessness, and even as a type of

mistake\" (Aviall of Texas, Inc. v. United States, 70 F.3d

1248, 1249 (Fed. Cir. 1995), citing Hambro, supra).

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 e 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. The relief provided for in

19 U.S.C. §1520(c)(1) is not an alternative to the relief

provided for in 19 U.S.C. §1514; section 1520(c)(1) only

affords \"limited relief in the situations defined therein\"

(Phillips Petroleum Company v. United States, 54 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.

Sup.

1326 (1980); see also, Computime, Inc. v. United States, 9

CIT 553, 555, 622 F. Supp. 1083 (1985).

Protestant claims that, despite having knowledge of the

correct classification, its employee failed to annotate the

entry with the Special Preference Indicator \"L\", thereby

failing to claim duty free status. Under 19 U.S.C.

§1520(c)(1), the clerical error, mistake of fact, or other

inadvertence not amounting to an error in the constructions of

a law must be \"manifest from the record or established by

documentary evidence.\" In this case, the alleged mistake is

not manifest from the record. There is no documentary evidence

on the claimed clerical error, mistake of fact, or other

inadvertence other than the statements by the protestant\'s

representative in the request for reliquidation and the

protest. This lack of evidence was brought to protestant\'s

attention by this office and protestant was afforded ample

opportunity to substantiate its claim. Presently, there is

nothing in the protest file to disprove that the clerk made a

conscious decision to leave out the Special Preference

Indicator. Indeed, by protestant\'s own assertion, the

notations in the file pertaining to the subject entries show

that the clerk was aware of the correct classification after

reviewing the records for the Los Angeles entries. We note

that copies of said notations, referenced to in protestant\'s

additional submission of September 23, 1997, were never

submitted by protestant.

Further, we note that the Courts have held that the

essence of clerical error is the intent of the person preparing

the document in which the error was allegedly made and where

there is no evidence from that person as to his or her intent,

the evidence is insufficient to sustain a claim of clerical

error (see, Pacific Trading Co. v. United States, 20 Cust.Ct.

170, C.D. 1103 (1948); Francisco Castelazo v. United States,

24 Cust. Ct. 294, C.D. 1250 (1950); see also, PPG Industries,

supra. In the instant case, there is no affidavit from the

clerk as to the facts of the claimed clerical error, mistake of

fact, or other inadvertence (for an example of the use of such

evidence, see C.S.D. 89-87). Protestant asserts that the error

resulted from \"oversight and not the exercise of judgment that

caused the SPI to be omitted.\" However, we cannot simply

accept protestant\'s assertions without any corroboration (see

Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124,

126 (1983), with regard to the sufficiency as evidence of a

counsel\'s unsupported assertions).

As to protestant\'s allegation (in the December 20, 1996

letter) that Customs offices in other districts approved a

request for reliquidation under 19 U.S.C. §1520(c)(1) in

identical circumstances, we are unable to comment on that

allegation without reviewing that case and the materials

associated with it. Even if this is true, we do not accept the

proposition that a decision by a Customs port director governs

all similar requests for reliquidation under 19 U.S.C.

§1520(c)(1) or protests.

HOLDING:

Relief may NOT be granted under 19 U.S.C. §1520(c)(1) for

the reasons given in the LAW AND ANALYSIS portion of this

ruling. The protest is DENIED.

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, with

the Customs Form 19, 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, Freedom of Information Act, and other

public access channels.

Sincerely,

John A. Durant, Director

Commercial Rulings Division