HQ 225163

September 15, 1994

LIQ-9-01-CO:R:C:E 225163 PH

CATEGORY: Liquidation

Regional Commissioner of Customs

(C/O Protest and Control Section)

6 World Trade Center, Room 762

New York, New York 10048-0945

RE: Protest No. 1001-93-107081; Clerical Error, Mistake of

Fact, or other Inadvertence; Antidumping Duties;

Reimbursement Certification; 19 U.S.C. 1520(c)(1)

Dear Sir:

The above-referenced protest was forwarded to this office for

further review. In its memorandum in support of the protest, the

protestant requested a meeting. An opportunity for such a

meeting was given to the representative of the protest who chose

to submit a supplemental letter addressing issues which this

office had raised in lieu of such a meeting. A copy of the

protestant\'s April 29, 1994, letter is enclosed for your records.

We have considered the points raised by your office and the

protestant. Our decision follows.

FACTS:

According to the file, on May 7, May 9, and June 5, 1987, the

importer entered certain merchandise (certain enamel cookware)

from Taiwan. The protestant acted as surety for the entries.

The merchandise under consideration was the subject of an

antidumping investigation (case A-583-508) (Federal Register of

December 31, 1985 (50 FR 53353)). In a notice of preliminary

determination (Federal Register of May 20, 1986 (51 FR 18472)),

Customs was directed to suspend liquidation of all entries of

such merchandise that are entered, or withdrawn from warehouse,

for consumption, on or after the date of publication and to

require a cash deposit or the posting of a bond equal to the

estimated weighted-average amount provided in the notice. A

final determination was published in the Federal Register on

October 10, 1986 (51 FR 36425), pursuant to which Customs was

directed to continue to suspend liquidation of entries of the

merchandise and to continue to require a cash deposit based on

the estimated weighted-average amount provided in the notice. On

December 2, 1986, in an Antidumping Duty Order, the International

Trade Administration (ITA) published a determination in the

Federal Register (51 FR 43416) that importations of the

merchandise materially injure a United States industry (on the

basis of findings of the International Trade Commission (ITC))

and Customs was directed to require a cash deposit based on the

estimated weighted-average antidumping duty margins provided in

the notice.

Pursuant to the above determinations, the importer deposited

antidumping duties for the entries protested in the total amount

of \$4,426.25.

On February 8, 1988, Customs issued a telegram (No. 001557,

Subject: Antidumping Duties (88-16)) advising that the Depart-

ment of Commerce had not received a request for an administrative

review of the antidumping duty finding/order for certain periods

on merchandise listed in the telegram. Therefore, Customs

officers were directed to assess antidumping duties on the

subject merchandise entered, or withdrawn from warehouse, for

consumption during the periods listed in the telegram at the cash

deposit or bonding rate required at the time of entry. The

instructions for the merchandise under consideration were to

\"liquidate all entries for all firms except: \[not applicable in

this case\] \[for the\] period \[of\] 05/20/86 - 11/30/87\".

On April 22, 1992, Customs sent a Customs Form 29, Notice of

Action, to the importer in regard to the protested entries, along

with certain other entries. Customs stated in the notice that

the \"entries \[were\] to be liquidated at \[antidumping\] duty rates

as entered. Please complete attached reimbursement statement and

return it to this office.\" The \"reimbursement statement\" form

listed each of the protested entries, along with the other

entries. The form cited 19 CFR 353.26, and stated that failure

to return the document within 20 days could result in \"up to

double the amount of final antidumping duty determination rates.\"

The certification on the form concerned whether the importer had

entered into any agreement or understanding for the payment or

refunding to the importer by the manufacturer, producer, seller

or exporter of all or any part of the antidumping duties upon the

listed entries. According to the box checked on the Customs Form

29, if the importer disagreed with the proposed action, the

importer was requested to furnish its reasons in writing to

Customs within 20 days from the date of the notice; after 20 days

the entries were to be liquidated as proposed.

The entries were liquidated on July 24, 1992, with an increase in

the antidumping duties in the total amount of \$4,426.25

(representing the additional assessment equal to the total

dumping duties deposited, on the basis that the reimbursement

notice was not returned to Customs, as provided for in the above-

referenced Customs Form 29) for the protested entries. According

to the protestant, on February 19, 1993, Customs issued a demand

for payment of the increased antidumping duties on the

protestant-surety, \"given that the importer was no longer in

business.\"

On July 23, 1993, the protestant filed a request to reliquidate

the entries under consideration on the basis that the liquidation

of the entries with additional antidumping duties was the result

of a clerical error, mistake of fact, or other inadvertence

adverse to the claimant. By letter of September 1, 1993, Customs

responded to the protestant\'s July 23, 1993, request for relief

under 19 U.S.C. 1520(c)(1). In its letter, Customs stated (by

checking the appropriate box on the form letter) that:

We have determined that there is no clerical error, mistake

of fact, or other inadvertence correctable under section

520(c)(1). Consequently, the subject of your claim falls

within the scope of Section 514. However, since your

letter was not presented within the time limit prescribed

by section 514, we cannot afford you review under that

section of law.

On October 13, 1993, the protestant filed the protest under

consideration, protesting the denial of the July 23, 1993,

request for relief under 19 U.S.C. 1520(c)(1). Further review of

the protest was requested and granted.

ISSUE:

May the protest in this case be granted?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e.,

within 90 days after the denial of the request for relief under

19 U.S.C. 1520(c)(1)) and that the request for relief under

section 1520(c)(1) was timely filed (within 1 year after the date

of liquidation). The matter protested is protestable (see 19

U.S.C. 1514(a)(7)).

No certification that the protest is not being filed collusively

to extend another authorized person\'s time to protest, as

required for a protest by a surety (see 19 U.S.C. 1514(c)(2)),

was provided. Because the protest must be denied on other

grounds (see below), we are not addressing the issue of whether

such a certification is required in a protest such as this,

protesting the denial of a request by a surety for relief under

19 U.S.C. 1520(c)(1). Nor are we addressing the issue of whether

the filing of a certification after the time for protest has

expired, as the protestant purported to do in its April 29, 1994,

letter, satisfies the requirement for such a certification. We

note, however, that the leading Court case interpreting this

requirement, Washington International Insurance Co. v. United

States, 13 CIT 112, 707 F. Supp. 561 (1989), found the

requirement for this certification to be an absolute,

jurisdictional requirement, noting that \"\[it (i.e., the Court)

was\] hard-pressed to conceive of what such a reason \[i.e., for

not complying with the certification requirement\] might be.\" (13

CIT at 115; see also Note 8, id, \"This court finds no per se rule

allowing omission of certification in such circumstances \[i.e.,

when the importer was not locatable\].\")

We also are not addressing the issue of standing (because, in any

event, the protest must be denied on other grounds, as explained

below). However, we note that standing is a basic threshold

jurisdictional requirement (see, e.g., Tisza v. Communications

Workers of America, 953 F. 2d 298 (7th Cir. 1992), Shearson

Lehman Hutton, Inc., v. Wagoner, 944 F. 2d 114 (2nd Cir. 1991);

see also, West\'s Federal Practice Digest, 4th, Vol. 41, Federal

Civil Procedure, § 103.1, and cases discussed therein). Standing

could be a bar to relief in this case because, in filing the

request for relief under section 1520(c)(1), the surety sought to

benefit from the provision as the agent of the importer.

Therefore, the surety \"merely step\[s\] into the shoes of \[the

importer\] and only acquire\[s\] whatever rights to the refund of

duties \[the importer\] had.\" (See, e.g., St. Paul Fire and Marine

Insurance Co. v. United States, 2 CIT 104, 106, 525 F. Supp. 880

(1981).)

If bankruptcy of the importer occurred before the filing of the

request for relief under 19 U.S.C. 1520(c)(1) in this case, as in

the St. Paul Fire and Marine Insurance Co., case, supra, \"the

initial obligation for payment of the duties \[would be\] \'rooted

in the prebankruptcy past\'\", so that \"\... any claim for refund of

those duties vested in the trustees in bankruptcy \... \[and\] only

they \[i.e., the trustees in bankruptcy\], and not the bankrupts,

could properly pursue the claims by filing the protests.\" Since

the bankrupt (i.e., the principal) could not properly pursue

relief, neither could the surety, standing in the shoes of the

principal, pursue such relief. However, because the factual

evidence available does not conclusively establish the importer\'s

bankruptcy (the protestant was given an opportunity to provide

evidence on this issue and did not do so) and because the protest

may be decided on other grounds, we are not denying the protest

on the basis of standing.

In this case, the surety has sought relief under 19 U.S.C.

1520(c)(1). Under this provision, 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. 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 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 (1979), 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, 68

Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp 1395 (1972), aff\'d, 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, 68 Cust.

Ct. at 22).

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. The relief provided for in 19 U.S.C. 1520(c)(1) is not an

alternative to the relief provided for in the form of protests

under 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. Supp. 1326 (1980); see

also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F.

Supp. 1083 (1985), and Concentric Pumps, Ltd. v. United States,

supra).

The protestant\'s June 23, 1993, request for relief under section

1520(c)(1) claimed that the liquidation of the entries with

additional antidumping duties was the result of a clerical error,

mistake of fact, or other inadvertence adverse to the claimant.

Specifically, the protestant argued that although Customs

instructions (i.e., the February 8, 1988, telegram referred to

above) \"clearly dictated that the entries should be liquidated on

February 8, 1988, either through mistake or inadvertence these

entries were not liquidated until July 24, 1992.\" The protestant

contended that Customs committed two mistakes of fact or

inadvertences in this case. The first was that Customs acted as

if the suspension of liquidation had not been lifted in February

of 1988. In this regard, the protestant argued that if Customs

had not delayed the liquidation of the entries, the reimbursement

statement would have been requested while the importer was still

in business. The second mistake of fact or inadvertence by

Customs, according to the protestant, was in acting as though the

entries were unliquidated when, in fact, they were deemed

liquidated on the four-year anniversary of the dates of entry

(under 19 U.S.C. 1504(d)). Since the entries should have been

deemed liquidated on the four-year anniversary, \"it was a mistake

to assess double antidumping duties when the entries had already

been deemed liquidated with the amount of antidumping duties

deposited at the time of entry.\" Finally, the protestant argued

that Customs was mistaken to presume that the importer was

subject to reimbursement of antidumping duties, on the basis of

the failure of the importer to return the completed reimbursement

statement sent to it with the Customs Form 29 (described above).

The evidence submitted with the request for relief consisted of

copies of the February 8, 1988, liquidation instructions, the

April 22, 1992, Request for Information, and the Customs Forms

7501 for the entries under consideration, with notations

recognizing the liquidation instructions (i.e., \"ADA As per HQ

Telex 001557, dated 2/8/88 liquidate entry Dumping duty rate

doubled\".

The first mistake alleged by the protestant is that Customs acted

as if the suspension of liquidation had not been lifted in

February, resulting in the reimbursement statement being sent to

the protestant after it was out of business. In other words, the

inadvertence or mistake of fact alleged is Customs failure to

liquidate the entry pursuant to the February 8, 1988,

instructions.

As the protestant argues in this regard, we have ruled that

relief may be granted under section 1520(c)(1) when an entry is

prematurely liquidated with countervailing duties, contrary to

instructions to suspend liquidation because of the pendency of

the countervailing duty case (see, e.g., HQ ruling 223160,

September 13, 1991). However, in that case it was established

that the Customs officer who liquidated the merchandise was not

aware that there was an outstanding countervailing duty case and

that liquidation had been suspended. Thus, this position is

consistent with Universal Cooperatives, Inc., v. United States,

13 CIT 516, 518, 715 F. Supp. 1113 (1989), which distinguished

between \"decisional mistakes\" in which a party may make the wrong

choice between two known alternative sets of facts and which

\"must be challenged under Section 514\" and \"ignorant mistakes\"

which are remediable under section 1520(c)(1) (see also, in this

regard, Legal Determination 75-0026).

In this case, there is no evidence as to whether the Customs

official who liquidated the protested entries was ignorant of the

removal of the suspension of liquidation or whether that official

was aware of the removal of suspension and determined that it was

inapplicable to the entries under consideration. As explicitly

stated in section 1520(c)(1), in order to qualify for relief

under that provision, the clerical error, mistake of fact, or

other inadvertence must be manifest from the record or

established by documentary evidence (see, in this regard, PPG

Industries, Inc. v. United States, 4 CIT 143, 147-148 (1982), and

United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949),

\"\[d\]etermination of issues in customs litigation may not be based

on supposition\"). Since section 1520(c)(1) only affords \"limited

relief in the situations defined therein\" (see Court cases above

in regard to this proposition) and since the prerequisites for

such relief have not been met in regard to this allegation, the

protest is DENIED in this regard.

The second mistake alleged by the protestant is that of acting as

though the entries were unliquidated (even though the entries

were actually deemed to have been liquidated at the 4-year

anniversary of the dates of entry) when the purported

liquidation, with an increase in antidumping duties, was

effected. In other words, the protestant alleges that it was an

inadvertence or mistake of fact by Customs to liquidate the

entries after they should have been deemed liquidated as entered

on the 4-year anniversary of the entries.

In regard to this issue, the dates of the entries under

consideration were May 7 and 9, and June 5, 1987. The date of

the liquidation instructions was February 8, 1988. The date of

liquidation was July 24, 1992, more than four years after the

dates of entry and more than four years after the date of the

liquidation instructions.

If a protest under 19 U.S.C. 1514 had been timely filed by an

authorized party, relief could have been granted, pursuant to 19

U.S.C. 1504(d), as interpreted before its amendment by section

641 of Public Law 103-182 (the North American Free Trade

Agreement Implementation Act (107 Stat. 2057, 2204), enacted

December 8, 1993), or as so amended. In regard to the

interpretation of section 1504(d) before its 1993 amendment, see

Nunn Bush Shoe Co. v. United States, 784 F. Supp. 892 (CIT 1992)

(i.e., if the suspension of liquidation was removed before the

end of the 4-year period after entry, liquidation was required

before the four-year anniversary of the entries). Because no

timely protest was filed under section 1514, relief may not be

granted under that statute (see United States v. A. N. Deringer,

Inc., 66 CCPA 50, 593 F. 2d 1015 (1979); Omni U.S.A., Inc. v.

United States, 6 Fed. Cir. (T) 99, 840 F. 2d 912 (1988); and

Philip Morris v. United States, 13 CIT 556, 716 F. Supp. 1479

\(1989\) (affirmed in part and reversed in part in an unpublished

decision of the Court of Appeals for the Federal Circuit, 8 Fed.

Cir. (T) 187, 907 Fed. 2d 158 (1990)), relating to the issue of

\"void\" versus \"voidable\" liquidations).

Relief under section 1520(c)(1) is unavailable in this regard

basically for the same reasons cited regarding the first mistake

alleged by the protestant (i.e., lack of evidence establishing

the alleged inadvertence or mistake of fact). That is, there is

no evidence as to whether the Customs official who liquidated the

protested entries did so as a result of inadvertence or mistake

of fact not amounting to an error in the construction of law, or

as a result of a mistake in the construction of law. See SCA

International, Inc., v. United States, 14 CIT 59 (1960), for a

case finding that section 1520(c)(1) is inapplicable without such

evidence in the case of an improper liquidation. As the Court

stated in that case, \"\[t\]he essential question is \-- did the

improper liquidations occur as a result of a mistake in the

construction of law or as a result of a mistake of fact\" (14 CIT

at 60). As noted above in regard to the first mistake alleged by

the protestant, since section 1520(c)(1) only affords \"limited

relief in the situations defined therein\" (see Court cases above

in regard to this proposition) and since the prerequisites for

such relief have not been met in regard to this allegation, the

protest is DENIED in this regard.

The protestant also argues that Customs made a clerical error,

mistake of fact, or other inadvertence in presuming that the

importer was reimbursed for the antidumping duties, on the basis

of the importer\'s failure to provide the reimbursement statement,

is as follows. Our analysis of this argument follows.

The Department of Commerce has advised Customs regarding its

interpretation of this issue (see June 5, 1991, letter from the

Department of Commerce to Customs, copy enclosed). According to

this letter, for entries during the time-period in which the

protested entries were made, the Department of Commerce required

the importer to file a reimbursement certificate with Customs

within 30 days after the earlier of: (1) publication of the

antidumping order or any administrative review thereof pursuant

to 19 CFR 353.53, or, if appropriate, 19 CFR 353.49; or (2)

importation of the merchandise in a district in which not

previously imported (see also 19 CFR 353.55, between 1980 and

1989, now at 19 CFR 353.26). The letter also stated that, \"\[i\]f

the importer goes out of business before the deadline for filing

the certificate has passed, Customs should not presume that

reimbursement has occurred \[and\] if the importer goes out of

business after the deadline for filing the certificate has

passed, Customs should presume that reimbursement occurred.\"

There is no requirement, in either the June 5, 1991, letter or in

the applicable regulations (19 CFR 353.55 between 1980 and 1989

and 19 CFR 353.26 now) that Customs must give an importer notice

to provide a reimbursement statement; the applicable regulations

require the importer to file the statement with Customs.

In this case, Customs records indicate that the importer went out

of business as of March 27, 1992, and the protestant does not

disagree with those records. The date of the antidumping order

in this case was December 17, 1986. According to the February 8,

1988, Customs telegram issuing liquidation instructions (see

above), there was no request for administrative review of the

antidumping order. There is no evidence presented as to the date

of first importation in the district of importation of the

protested entries. However, even if we assume that the earlier

of the events 30 days after which the importer was required to

file the reimbursement statement was the date of publication of

the antidumping order, the evidence before us is clear that the

importer went out of business after the deadline for filing the

reimbursement certificate, in which case the Department of

Commerce advised in its June 5, 1991, letter that Customs should

presume that reimbursement occurred. The request for relief is

DENIED in this regard (and we note that a protest, if one had

been timely filed by an authorized party under 19 U.S.C. 1514

would also have been denied in this regard).

HOLDING:

The protest (i.e., as to the demand on the surety for payment of

the increased antidumping duties) 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 ECHOES and the public via the Diskette

Subscription Service, Freedom of Information Act, and other

public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division

Enclosures