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HQ 226457





January 16, 1996

LIQ-9-01-RR:IT:EC 226457 GEV

CATEGORY: LIQUIDATION

Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044

RE: Application for further review of Protest No. 2304-95-100110; 19 U.S.C. 1520(c)(1); mistake of fact; classification of Persian limes; legal construction; C.J. Tower & Sons of
Buffalo, Inc. v. United States; Bar Bea Truck Leasing Co., Inc. v. United States; PPG
Industries, Inc. v. United States; ORR Ruling 75-0026; HQ 223625

Dear Sir or Madame:

This is in response to your memorandum dated September 12, 1995, forwarding the above-referenced protest 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 entries pursuant to 19 U.S.C.

The protestant filed six entries from January 14, 1994 through February 2, 1994, covering imported fresh Persian limes from Mexico. The limes were classified under subheading 0805.30.4000 of the Harmonized Tariff Schedule of the United States (HTSUS), which provided for "Citrus fruit, fresh or dried: Lemons (Citrus limon, Citrus limonum) and limes (Citrus aurantifolia): Limes," which were dutiable at 1.9 cents per kilogram in 1994. Pursuant to Customs Directive No. 3550-39, dated January 16, 1991, you have forwarded copies of representative entry documentation covering the entries in question (i.e., an Entry Summary (CF 7501), an invoice from a Mexican vendor, and a U.S. Department of Agriculture inspection certificate). The aforementioned entry documentation specifically identifies the limes as "citrus latifolia," or "Mexico Persian seedless limes," or simply "limes: fresh or dried." Subheading - 2 -

0805.90.00 provided for "Citrus fruit, fresh or dried: Other [than Lemons (Citrus limon, Citrus limonum) and limes (Citrus aurantifolia)], including kumquats, citrons and bergamots," duty-free from Mexico in 1994.

These entries were liquidated as entered on May 6, 1994. On June 30, 1994, Administrative Message 94-0661 was posted to the OTO5 Bulletin Board, listing modifications to the 1994 HTSUS-Supplement 2. The message gave notice of statistical breakout changes to subheading 0805.90.00. As a result of this notice, it was determined that the proper classification for Persian limes is subheading 0805.90.0010 HTSUS, which provides for "Citrus fruit, fresh or dried: Other, including kumquats, citrons and bergamots...Tahitian, Persian limes and other limes of the citrus latifolia variety." (Emphasis added) The tariff classification is duty-free from Mexico. According to the National Import Specialist (NIS), Persian limes, which are seedless, are of the citrus latifolia variety and the limes of subheading 0805.30.4000 HTSUS, citrus aurantifolia, are seeded limes. According to the port, the subject limes would have been more appropriately classified under subheading 0805.90.00 HTSUS, as "other." The NIS is in agreement with classification under subheading 0805.90.00 HTSUS.

On October 3, 1994, Customs received a letter from the protestant requesting reliquidation of the subject entries of fresh Persian limes under subheading 0805.90.0010 of the HTSUS. The letter states that the limes had been "erroneously classified as Limes (citrus aurantifolia)." The request for reliquidation, which was received by Customs more than 90 days after the date of liquidation, was treated as a request for reliquidation under 19 U.S.C. 1520(c)(1). However, because the petition for reliquidation did not meet the criteria of 19 U.S.C. 1520(c)(1) requiring a clerical error, mistake of fact or other inadvertence, the request was denied on April 11, 1995.

The protestant filed the protest at issue on July 3, 1995. In its protest, the protestant states:

By Administrative Message No. 94-0661,...dated June 30, 1994, ABI Brokers were advised to change the classification for LIMES under GSP to HS
0805.90.0010, with a FREE duty rate.

Confusion arose because LIMES in the common understanding is a Citrus Fruit entered under 0805.30.4000. U.S. Customs advised the ABI Brokers to correct the classification according to the Administrated [sic] Message, thereby creating a mistake of fact for prior entries. (Emphasis added)

In support of its protest, the protestant cites to C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, C.D. 4327, 366 F.Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974) and ORR Ruling 75-0026, and states that "[t]he Customs Officer was not aware of any Headquarter's Classification Ruling and continued to accept entries under the former classification."

ISSUE:

Whether relief may be granted under 19 U.S.C. 1520(c)(1) to correct an alleged mistake of fact in the classification of merchandise?

LAW AND ANALYSIS:

Initially we note that this protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(B). The date of the decision protested was April 11, 1995, and the protest was filed on July 3, 1995. In addition, the refusal to reliquidate an entry under

Title 19, United States Code, ? 1514 (19 U.S.C. 1514) sets forth the proper procedure for an importer to protest the classification and appraisal of merchandise when it believes the Customs Service has misinterpreted the applicable law. A protest must be filed within ninety days after notice of liquidation or reliquidation. Otherwise, the tariff treatment of merchandise is final and conclusive.

Title 19, United States Code, ? 1520(c)(1) (19 U.S.C. 1520(c)(1)) is an exception to the finality of ? 1514. Under ? 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of the Customs Service within one year after the date of liquidation. 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; ? 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, 10 CIT 505, 508, 643 F.Supp. 623 (1986)).

Essentially the protestant's claim is that out of two competing HTSUS provisions, the subject limes were classified under the wrong provision. The protestant claims that the entries should have been reliquidated because Customs advised ABI Brokers to correct the classification of Persian limes according to the Administrative Message, "thereby creating a mistake of fact for prior entries." The Administrative Message does not advise brokers to "correct" any classification. The Administrative Message only advises of statistical changes in the HTSUS, providing for a further breakout of subheading 0805.90. Statistical annotations are not included in the legal text of HTSUS. HTSUS, General Statistical Note 2; Tariff Act of 1930 as amended by ? 1204(a) of the Omnibus Trade and Competitiveness Act of 1988, Pub.L. 100-418, 102 Stat. 1107, 1148 (1988). Therefore, the statistical annotations have no legal status. Unlike the legal text of the HTSUS, the statistical annotations are established by the Secretary of the Treasury, the Secretary of Commerce, and the United States International Trade Commission, pursuant to 19

U.S.C. ? 1484(f). The Administrative Message and statistical annotation have no bearing on the classification of the subject limes, as they did not change the applicable HTSUS provisions. Therefore, this mistake of fact claim is not supported.

The only other mistake of fact to which the protestant refers is that a "Customs Officer was not aware of any Headquarter's Classification Ruling and continued to accept entries under the former classification." The protestant cites ORR Ruling 75-0026, dated January 24, 1975, in support of this allegation. The aforementioned ruling states that although generally an error in classification is not within the purview of 19 U.S.C. 1520(c)(1), and exception exists and reliquidation is proper when a Customs officer is not aware of a classification ruling. The protestant has failed to bring to Customs attention any classification ruling of which a Customs officer was unaware. Therefore this mistake of fact claim is not supported.

The courts have consistently taken the position that an erroneous classification of merchandise is not a clerical error, mistake of fact, or other inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is an error in the construction of law. See, Mattel Inc. v. United States, 377 F.Supp. 955, 72 Cust.Ct. 257, C.D. 4547 (1974); and C.J. Tower & Sons of Buffalo, Inc. v. United States, 366 F.Supp. 1395, 68 Cust.Ct. 17, C.D. 4327, aff'd, 499 F.2d 1277, 61 CCPA 90 (1972). Here, the only error established by the protestant is one involving the classification of limes, which could only have been corrected by the filing of a 19 U.S.C. 1514 protest within 90 days of the original liquidation. In support of its protest, the protestant cites to C.J. Tower & Sons of Buffalo, Inc. In Tower, neither the District Director of Customs nor the importer were aware of the nature of the imported merchandise, which would have entitled it to duty-free treatment, until after the liquidation became final. The court held that such a lack of knowledge did not amount to an error in the construction of the law but came within the statutory language "mistake of fact or other inadvertence." Degussa Canada Ltd. v. United States, No. 95-109, Slip Op. (CIT, June 13, 1995) citing C.J. Tower & Sons, 68 Cust.Ct. at 22, 336 F.Supp. at 1399. We find the Tower case inapplicable in this case, because the entry documentation indicates that the protestant was aware of the specific variety of limes being purchased.

Other than an error in the classification of the limes between the two competing HTSUS provisions, the protestant has failed to bring to Customs attention any "mistake of fact, clerical error or other inadvertence" correctable under 19 U.S.C. 1520(c)(1). The CIT has ruled that mere assertions by a complainant without supporting evidence will not be regarded as sufficient to overturn a Customs official's decision. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). Further, upon an assertion that merchandise has been wrongly classified due to a mistake of fact, "it is incumbent on the plaintiff to show by sufficient evidence the nature of the mistake of fact." PPG Industries, Inc. v. United States, 4 CIT 143, 147-148 (1982), citing Hambro Automotive Corp. v. United States, 81 Cust.Ct. 29, 31, 458 F.Supp. 1220, 1222 (1978) aff'd, 66 CCPA 113, C.A.D. 1231, 603 F.2d 850 (1979). It is insufficient for the protestant to notify Customs that the classification was wrong. This does not identify and explain the correctable error. It fails to demonstrate that the error was other than a mistake in legal conclusion. See Headquarters Ruling 223625, dated May 4, 1992. In this case, the protestant has
failed to set forth any correctable error, and no error is manifest from the record. The classification error was an error in the construction of a law which could only have been remedied by the filing of a protest within 90 days of liquidation pursuant to 19 U.S.C. 1514.

HOLDING:

An error in the classification of merchandise is correctable by the filing of a 19 U.S.C. 1514 protest within 90 days of liquidation; relief is not available under 19 U.S.C.

Accordingly, the protest is denied.

In accordance with ? 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 no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to mailing 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 Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

Director

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