HQ 0222853 - Application for further review of Protest No. 1001-0- 001925 under 19 U.S.C. 1520(c)(1) - United States International Trade Commision Rulings

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HQ 222853

July 30, 1991

LIQ-9-01-CO:R:C:E 222853 CB

CATEGORY: ENTRY PROTEST

Regional Commissioner
U.S. Customs Service
New York Region
Suite 716
6 World Trade Center
New York, NY 10048-0945

RE: Application for further review of Protest No. 1001-0- 001925 under 19 U.S.C. 1520(c)(1)

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the points raised and our decision follows.

FACTS:

A request for reliquidation of the subject entry pursuant to 19 U.S.C. 1520(c)(1) was denied and the subject protest was filed.

According to protestant, the merchandise consists of two "Rotadisc" driers which were manufactured in Norway. The driers were classified by the importer's customs broker under the provision for item 661.68, Tariff Schedules of the United States (TSUS), dutiable at 4.2% ad valorem. That provision covers industrial machinery except agricultural implements. Protestant claims that classification of the merchandise under that provision was the consequence of a "mistake of fact" on the part of the broker, who was not aware that the driers were principally used in agricultural operations.

ISSUE:

Whether the subject entry qualifies for reliquidation under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

Section 514 of the Tariff Act of 1930, as amended (19 U.S.C. 1514), sets forth the proper procedure for an importer to protest the classification and appraised value of its merchandise when it believes Customs has misinterpreted the applicable law -2-
and incorrectly classified the imported merchandise. Section 514 makes the tariff treatment of goods final and conclusive, unless the classification is protested within ninety days of liquidation.

Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)), provides that Customs may correct certain errors, if adverse to the importer, within one year of the date of liquidation. An entry may be reliquidated in order to correct a clerical error, mistake of fact, or inadvertence not amounting to an error in the construction of a law. See 19 U.S.C. 1520 (c)(1); 19 CFR 173.4. 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 offers "limited relief in the situation defined therein" (Phillips Petroleum Company v. United States, 54 CCPA 7, 1, C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc. v. United States, 85 Cust. Ct. 68, 69 C.D. 4874 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 91985), and Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986)).

Section T.D. 54848 describes and distinguishes correctable errors under 1520(c)(1). Mistake of fact occurs when a person believes the facts to be other than what they really are and takes action based on that erroneous belief. The reason for the belief may be that a fact exists but is unknown to the person or he may believe that something is a fact when in reality it is not. Inadvertence connotes inattention, oversight, negligence, or lack of care while clerical error occurs when a person intends to do one thing but does something else, including mistakes in arithmetic and the failure to associate all the papers in a record under consideration. Occidental Oil & Gas Co. v. United States, Vol. 23 Cust. Bull. & Dec. No. 17, April 20, 1989, page 40, 42, CIT Slip Op. 89-40, quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, supra at 22.

However, errors in the construction of a law are not correctable under 1520(c). Those occur when a person knows the true facts of a case but has a mistaken belief of the legal consequences of those facts and acts on that mistaken belief. See, 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, supra at 508; see also, C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, D.D. 4327, 336 F. Supp. 1395 91972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F. 2d 1277 (1974), and Universal Cooperatives, Inc. v. United States, Vol. 23 Cust. Bull. & Dec., No. 29, July 19, 1989, page 38, 40, CIT Slip Op. 89-89), and 94 Treas. Dec. 244, 245- 246 (1959).

The failure of the broker to properly determine the principal use of the merchandise is not a mistake correctable under 19 U.S.C. 1520(c)(1). The packing list submitted together with the entry summary clearly states that the merchandise is a grain drying system. Therefore, the conclusion that must be reached is that the customs broker made a decision to classify the merchandise as entered. Even if we were to accept that a mistake was made, it was decisional in nature. The broker may have made the wrong choice between the two alternative classifications. However, as stated by the Court of International Trade in Universal Cooperatives, Inc. v. United States, supra at 40, a decisional mistake must be challenged under 19 U.S.C. 1514.

HOLDING:

Based on the foregoing discussion, this protest should be denied.

A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

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