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HQ 952029




LIQ-9-01-RR:IT:EC 952029 SAJ

CATEGORY: LIQUIDATION

Port Director of Customs
700 Doug Davis Drive
Atlanta, GA 30354

RE: Timeliness of Certification under 19 C.F.R. 10.183; Mistake of Fact or Inadvertence under 19 U.S.C. 1520(c)(1); Civil Aircraft Agreement; Delta Airlines; Late Filing under 19 C.F.R. 10.112; Uniform and Established Practice; Protest No. 1704-92-100074, 1704-92-100080, and 1704-92-100295

Dear Sir:

The above-referenced protests were forwarded to our office to issue a ruling. We have withheld issuing a ruling awaiting the court's decision in Aviall of Texas, Inc. v United States, 70 F.3d 1248 (1995), aff'g in part, 861 F. Supp. 100 (CIT 1994), regarding the applicability of 19 U.S.C. 1520(c)(1) to the plaintiff's "inadvertent" late filing of the blanket certification for preferential tariff treatment under the Agreement on Trade in Civil Aircraft (Civil Aircraft Agreement). Since the United States Court of Appeals for the Federal Circuit (CAFC) has affirmed the lower court only on the applicability of section 1520(c)(1), and the government has not appealed the decision further, we will address the issues raised in the protests. In light of Aviall (decided December 1, 1995), we have examined the arguments and our decision follows.

FACTS:

Delta Air Lines, Inc. (protestant) regularly imports aircraft engines and aircraft parts into the United States for maintenance and enhancement of its fleet of aircraft. During 1990-91, protestant employed different brokerage companies to enter imported civil aircraft parts into a total of eight ports. For the Atlanta port, protestant filed a Civil Aircraft Agreement (CAA) blanket certification through D.J. Powers Company, Inc. (broker) on December 16, 1980. Broker filed approximately 700 entries of imported civil aircraft parts for protestant during 1990-91 in the Atlanta port. Protestant complied with the filing of valid CAA certifications in other ports during 1990-91. However, protestant/broker (protestant) did not file another blanket CAA certification in the Atlanta port until September 9, 1991, almost ten years after the expiration of the initial CAA blanket certification. Between June 1990 and May 1991, protestant primarily entered the civil aircraft parts under unconditionally "Free" Rate of Duty subheadings, such as 8803.30.00/Free and 8411.91.10/Free, in the Harmonized Tariff Schedule of the United States (HTSUS).

The following three protests, containing the entries involved, were timely filed:

(1) Protest No. 1704-92-100074, dated February 27, 1992, contains four entries of Rolls Royce aero engine spares, which were entered under subheading 8411.91.10/Free, HTSUS. This classification is for cast iron parts of turbojets and turbo propellers for use in civil aircraft. These parts are not cast iron and were reclassified by Customs under subheading 8411.91.90/3.7%, HTSUS, as other parts of aircraft turbines of turbojets and turbo propellers. Three entries were liquidated on November 29, 1991, and one on January 24, 1992.

(2) Protest No. 1704-92-100080, dated March 5, 1992, contains eight entries of Lucas Aerospace aero engine spares, some which were entered under subheading 8411.91.10/Free, HTSUS, as cast iron parts of turbojets and turbo propellers for use in civil aircraft, and others were entered under subheading 8803.30.00/Free, HTSUS, as other parts of airplanes for use in civil aircraft. These parts are not cast iron, nor are they parts of aircraft. The subject parts are parts of aircraft turbine of turbojets or turbo propellers, and were reclassified by Customs under 8411.91.90/3.7%, HTSUS. The entries were liquidated on December 6, 1991.

(3) Protest No. 1704-92-100295, dated August 2, 1992, contains eight entries of Rolls Royce modification kits purchased by protestant to enhance the performance of aircraft engine. Protestant initially entered these kits under subheading 8411.91.10/Free, HTSUS, as sets of cast iron parts of aircraft turbines for use in civil aircraft. However, Customs required protestant to reclassify the kits according to the item actually entered. Protestant reclassified some parts into various 7318/Free, HTSUS subheadings, such as 7318.23.00/Free and 7318.16.00/Free. Eleven parts, an insignificant portion of the total imported parts, were reclassified by protestant under the subheading C4016.93.00/Free, HTSUS. Customs, through Customs Form (CF) 28, requested specific information from protestant on October 24, 1990 and November 11, 1990 with respect to the kits. A second CF 28 request dated January 25, 1991 was necessary, as no information was received by protestant. Customs, through another CF 28, requested further information on February 15, 1991. On May 6, 1991, Customs reclassified the kits under 8411.91.90/3.7%, HTSUS. The entries were liquidated on May 15, 1992.

Because protestant filed entry summaries (CF 7501), classifying all but eleven imported parts under an unconditionally "Free" Rate of Duty subheading in the HTSUS, it was unnecessary for protestant to file a valid CAA entry-by-entry or blanket certification with Customs. However, protestant erroneously classified these parts. The subheadings do not have a "C" breakout (CAA-eligible special program indicator (spi) provision).

Once the Customs Import Specialist ascertained that these parts were erroneously classified, Customs filed the following Notices of Action (CF 29): two dated November 14, 1991 (one of which amended CF 29, dated November 7, 1991), November 15, 1991, January 6, 1992, and April 28, 1992. Customs notified protestant that the merchandise had been reclassified and denied free entry because no valid CAA entry-by-entry or blanket certification was on file.

Protestant does not dispute that the reclassification of the imported civil aircraft parts by Customs is correct. However, protestant argues that the request for reliquidation should have been granted because the duty-free certificates were not obtained until after the entries were liquidated. Protestant maintains that this "delay" was caused by mistakes of fact as to the respective roles of the protestant and protestant's broker, in that both parties were under the belief that the other submitted all the necessary documentation to Customs. Moreover, protestant claims that this case is analogous to that of Aviall, supra.

ISSUE:

Whether protestant's entitlement to the duty preference for civil aircraft parts under 19 C.F.R. 10.183(c)(1) and (2) may be remedied through: 1) a late filing of the CAA certificate under 19 C.F.R. 10.112; and/or 2) relief under 19 U.S.C. 1520(c)(1), where no valid CAA certification was filed, and where a uniform and established practice exists for entry of the subject parts.

LAW AND ANALYSIS:

Title VI, "Civil Aircraft Agreement" of the Trade Agreements Act of 1979 (Sec. 601, P.L. 96-39, 93 Stat. 144 96th Cong., 1st Sess. 1979), implemented the Agreement on Trade in Civil Aircraft. This Agreement became effective in the United States on January 1, 1980. On June 7, 1984, 19 C.F.R. Part 10, was amended to include section 10.183, 19 C.F.R. 10.183. This section provides for duty-free admission of civil aircraft parts for civil aircraft certified for use in accordance with the provisions of General Note 6, HTSUS.

Protestant claims that 19 C.F.R. 10.183 was not duly promulgated by Customs, thereby resulting in lack of notice. However, it is evident from the record that protestant had notice with respect to the requirements set forth under the CAA. Protestant is in the business of importing civil aircraft parts on a regular basis. During 1990-91, protestant entered civil aircraft parts in eight different ports, Atlanta containing the vast majority of the entries. In other ports, such as Memphis, protestant complied with the requirements set forth under the CAA during this period. This indicates that protestant had knowledge and notice of the procedures required under the CAA to claim and qualify for preferential tariff treatment.

Also, protestant specifically had notice in the Atlanta port. Protestant's agent, William Conaway (Conaway), a licensed customshouse broker, presently Executive Vice President of D. J. Powers in Atlanta, filed the CAA blanket certification on December 16, 1980, on behalf of protestant. Conaway acknowledges having notice of section 10.183. In his affidavit, provided by protestant, Conaway states that "[i]n the mid-1980's, [he] became aware of changes to the Customs Regulations under which Customs set forth various requirements for duty-free importations of civil aircraft parts, including [the CAA] certification requirements."

The issue regarding notice of section 10.183 was also raised in Aviall, supra. However, it is important to note that in Aviall, the CAFC only affirmed the lower court's decision on the grounds of 19 U.S.C. 1520(c)(1), and did not address the validity of 19 C.F.R. 10.183, nor the applicability of 19 C.F.R. 10.112 and 141.64. Consequently, a denial of a protest based on an importer's failure to make its claim at the time of entry, in accordance with 19 C.F.R. 10.183, would not be improper. See Texaco Marine Services, Inc. v. United States, 44 F.3d 1539, 1546-1547 (Fed. Cir. 1994), Texas Refrigeration Supply, Inc. v. FDIC, 953 F.2d 975, 980, 982-983 (5th Cir. 1992), and Levene v. Pintail Enters., Inc., 943 F.2d 528, 534 (5th Cir. 1991).

It is Customs' position that the Notice of Proposed Rulemaking on the CAA was published in the Federal Register on January 8, 1980. Comments were received, and T.D. 84-109 responded to those comments. The Final Rule was published in the Federal Register on May 8, 1984. Customs therefore maintains, that section 10.183 was validly promulgated in compliance with the "notice and comment" provision of the Administrative Procedure Act, which is a valid interpretation of congressional intent.

Congressional intent to have Customs monitor and validate section 601 entries is reflected in 19 C.F.R. 10.183(e), which provides that the port director shall "monitor and periodically audit entries made." Furthermore, Congress intended that Customs verify the duty-free entries after entry to ensure that merchandise remain in compliance with the statutorily mandated certification. Thus, the implementing regulations require that an approved CAA blanket certification is on file at the time of entry, and that the failure to have one on file cannot be remedied by late filing except under the curable exceptions set out by 19 U.S.C. 1520(c)(1).

Certain requirements must therefore be met to obtain duty-free treatment for the imported aircraft parts. Specific written certifications are required under General Note 6, HTSUS (19 U.S.C. 1202), which implement the CAA. Senate Report No. 96-249 provides, in relevant part, the following statutory language:

The term "certified for use in civil aircraft" would be defined under a new headnote 3 to schedule 6, part 6, of the TSUS. This definition, which would be applicable to the entire TSUS, would require the filing of a written statement, at the time of entry, that (1) the article has been imported for use in civil aircraft, (2) that it will be so used, and (3) that the article has been approved for such use by, or application for approval for such use has been accepted by the Administrator of the Federal Aviation Administration.
Approval by a foreign airworthiness authority for use in civil aircraft could be cited in lieu of F.A.A. approval if that approval is recognized by the Administrator of the F.A.A. as an acceptable substitute for F.A.A. approval. The certification requirement imposed under the amendment in section 601(a)(2) is a certification of use provision rather than an end use provision. The committee expects the Customs Service to monitor closely entries under the amendments under section 601 and, where necessary to protect the revenues, take appropriate action to insure the continuing validity of statements supplied to Customs under the certification requirements. (Emphasis supplied.) Civil Aircraft and Parts (Section 601 of the Bill), Senate Report No. 96-249 at pp. 573-74, pertaining to the Trade Agreements Act of 1979.

The first emphasized text could not be a clearer expression of Congressional intent. Congress intended that the certification as to future use be filed at the time of entry. The regulations do no more than follow that congressional statement of intent. The certification of future use was critical to the exemption from duty. Not all merchandise that could be used as an aircraft part, is always so used. For example, jet aircraft engines are used to power electrical generators. See HQ 952944, dated June 28, 1993.

As previously stated, Congress expected Customs to monitor the validity of the certifications given by importers. Customs determined that it could best achieve that stated Congressional purpose by following the clear language set forth in the above cited legislative history, which directs Customs to receive or already have filed a valid CAA certification when the claim is made at the time of entry. Customs Import Specialists, who verify the importer's asserted CAA classifications in the entry processing stage, are in the best position to determine whether additional evidence to support a CAA certification should be requested from an importer.

Trade statistics, which are important for setting national policies, are based on the import documents. Since liquidation under 19 U.S.C. 1504 may not occur for one year, the classification data received at the time of entry is the data used by the Bureau of Census. 15 C.F.R. 30.70. Under paragraph (g) of 15 C.F.R. 30.70, the information on the Customs entry and withdrawal forms are used to complete the foreign trade statistics. Also, both the Department of Census regulation and 19 C.F.R. 10.183 are consistent with and implement the Congressional direction contained in 19 U.S.C. 1484 (a)(2)(c) and

Section 10.183(c)(2) of the Customs Regulations, 19 C.F.R. 10.183(c)(2), simply follows the statute by providing that the importer must submit at the time of filing the entry summary a CAA certification for each entry or a blanket certification if more than one entry of civil aircraft parts will be made during a twelve month period. This requirements implements the statutory direction set in General Note 6 and 19 U.S.C. 1484(a)(1). That is, under 19 U.S.C. 1484(a)(1)(B) before its amendment by the Act of December 8, 1993 (107 Stat 2200, Pub. L. 103-182 Sec. 637), documentation needed by Customs to enable Customs to properly classify the good did not have to be filed before release from Customs custody, but had to be filed to complete the entry within 10 business days after release.

The CAA certification is valid for a period of one year from the date of approval by the port director in the port where the civil aircraft parts are entered. The CAA blanket certification may be renewed for additional one year periods upon written requests to each concerned port director. Failure to provide the CAA certification at the time of filing the entry summary, or to have an approved CAA blanket certification on file with the port director in the port where the entry summary is filed shall result in dutiable entry. (Emphasis added.) T.D. 84-109, 49 F. R. 19450 (1984) reprinted at 18 Cust. Bull. 271 (1984), as amended by T.D. 85-123, 50 F. R. 29953 (1985), T.D. 89-1, 53 F. R. 51252 (1988).

Because the filing of a CAA certification at the time of entry is an absolute requirement as part of the entry summary (CF 7501), it may not be filed as a missing document. This should not be confused with 19 C.F.R. 10.183(c)(1) which allows for the posting of a bond for missing documents other than the civil aircraft certification, such as written orders, contracts, or other supporting documentation. Section 10.183(c)(2) provides that "[t]he certification may not be treated as a missing document for which a bond may be posted." Thus, CAA certifications must either be filed with the entry or, in the case of CAA blanket certifications, be on file at the port where the parts are imported.

The implementing regulations require that an approved CAA blanket certification to be on file at the time of entry, and that the failure to have one on file cannot be remedied by late filing except under the curable exceptions set out by 19 U.S.C. 1520(c)(1). See Headquarters Ruling Letter (HQ) 716812, dated October 27, 1981 (ruling that the importer's certificate of use required by the CAA be filed at the time of filing the entry summary).

Protestant argues that section 10.112 of the Customs Regulations, 19 C.F.R. 10.112, permits the late filing of the civil aircraft certificate at any time before liquidation of the entries becomes final. (As previously stated, the CAFC does not affirm the lower court's decision on the applicability of section 10.112.) Section 10.112 provides that absent "willful negligence or fraudulent intent," certain documents in connection with the entry required for duty-free entry, may be filed at any time prior to the liquidation becoming final. NEC Electronics U.S.A., Inc. v. United States, 709 F. Supp. 1171, 13 CIT 214 (1989). The language "in connection with the entry" is expressly used throughout the Customs regulations to specify certain documents that must accompany an entry. See, e.g. 19 C.F.R. 10.24, 10.33, and 10.34.

Judicial decisions have emphasized that section "10.112 relates solely to documents that must be filed 'in connection with the entry'." Export Packers Co. Ltd. v. United States, 795 F. Supp. 422, 427, 16 CIT 394, 400 (1992) (emphasis in original) (holding that section 10.112 does not apply to all documents). The CAA certification in section 10.183 is not described as a document to be file "in connection with the entry." Customs interprets section 10.112 as inapplicable to the CAA certification, and thus, the CAA certification must not be filed after the filing of the entry summary. HQ Ruling 223194, dated August 14, 1991 (ruling that section 10.183 is not satisfied by the filing of a CAA certification subsequent to entry but prior to liquidation).

The language of section 10.183 of the Customs Regulations makes it clear that late filing of the CAA certification is not allowed. A reading of sections 10.112 and 10.183, establishes that the terms of section 10.112 are inapplicable to the certification required by the legislation enacting the CAA, and its implementing regulation, section 10.183. Customs cannot waive a requirement imposed by Congress. A claim made for duty-free treatment must therefore take place at the time of entry and not after the parts have been reclassified.

Protestant failed to fulfill the requirements proscribed in General Note 6, HTSUS (19 U.S.C. 1202) and section 10.183(c)(2) of the Customs Regulations, by not filing a CAA certification at the time of filing the entry summary, or having a CAA blanket certification on file. Customs therefore was precluded from granting duty-free treatment at the time of liquidation, and at the time the protests were filed. See HQ 951096, dated April 6, 1992, (holding that a certificate of use required under the CAA cannot be filed subsequent to entry under section 10.183 of the Customs Regulations, unless there exists a mistake of fact correctable under 19 U.S.C. 1520(c)(1)), and HQ 716812, dated October 27, 1981.

Furthermore, protestant did not show intent to claim preferential tariff treatment under the CAA. Protestant primarily entered the civil aircraft parts under unconditionally "Free" Rate of Duty subheadings in the HTSUS, thereby rendering it unnecessary to file a valid CAA entry-by-entry or blanket certification with Customs. Additionally, the procedure for claiming free entry for aircraft parts under the CAA was not followed by protestant. A claim of a CAA-eligible spi requires placing the spi "C" before the HTSUS classification number, which is the official code provided in the HTSUS. The entry must be eligible in the "Special" rate column of the HTSUS, for that particular subheading, and the appropriate CAA entry-by-entry or blanket certification must be valid at the time of entry. Thus, where the CAA certification is not provided or is not on file, or the importer fails to claim preferential tariff treatment under the CAA ("C" claim) at the time of entry, duty should be assessed.

For articles to be eligible for duty-free status as civil aircraft parts, they must be (1) classifiable in a provision which has an spi "C" breakout; (2) imported for use and used in civil aircraft; and (3) covered by a written certification filed by the importer with Customs. Civil Aircraft and Parts (Section 601 of the Bill), Senate Report No. 96-249 at p. 573, pertaining to the Trade Agreements Act of 1979.

Protestant failed to enter the subject parts into their appropriate classification by: (1) filing the subject entries without regard to the nature or description of the part covered on the invoice; (2) entering eo nomine parts provided for in specific HTSUS classifications which are not eligible for free entry under the provisions of the CAA, unless the requirements set forth under section 10.183 are met; and (3) submitting vague or incomplete invoice descriptions. For instance, protestant entered parts under the description "mod kits", which is meaningless. The parts should have been classified under a specific subheading. That is, parts must be entered as the item they actually are, and not as a part. Once Customs discovered the error, the parts were reclassified into their appropriate subheading in the HTSUS. To qualify for preferential tariff treatment, certain HTSUS provisions require the CAA certification under 19 C.F.R. 10.183(c).

Entries were primarily classified by protestant under subheadings 8803.30.00/Free, HTSUS, which are for "other parts of airplanes", and 8411.91.10/Free, HTSUS, which are for "cast iron parts", for use in civil aircraft. Subheading 8803.30.00/Free, HTSUS, falls under a General Column, which contains an unconditionally "Free" Rate of Duty, and does not have an spi "C" breakout. However, subheading 8411.91.10/Free, HTSUS, does not fall under an unconditionally "Free" Rate of Duty; some parts are unconditionally duty-free and others are subject to the spi "C" breakout.

Parts classified in these subheadings selected by protestant (8803.30.00/Free and 8411.91.10/Free, HTSUS), which are later reclassified in a subheading under the spi "C", must be rate advanced to a dutiable classification by Customs. An importer in this instance cannot take advantage of the CAA Special Column for a "Free" Rate of Duty if there is no CAA "certificate of (intended) use" filed at the time of entry, and no valid CAA blanket certification is on file.

In the case at hand, protestant entered parts for use in a civil aircraft, which are classifiable in a provision which has an spi "C" breakout. However, with the exception of eleven imported parts, protestant did not make the "C" claim by placing the spi "C" before the HTSUS subheading at the time of entry. Additionally, protestant did not have a valid CAA entry-by-entry or blanket certification on file. Consequently, there is no evidence that protestant intended, at the time of entry, that the entered parts would be used in the required qualifying manner. If the proper intent is not held at the time of entry along with a valid CAA certification, actions under 19 U.S.C. 1592 may be available. See HQ 222236 (noting that "it is the importer's intention at the time of entry which governs the assessment of a penalty based on fraud under 19 U.S.C. 1592").

Therefore, where the importer files an entry summary (CF 7501), which has the spi "C" before the HTSUS subheading, and the importer has a valid CAA entry-by-entry or blanket certification of use on file with Customs, an importer would qualify for CAA treatment if, after entry but before liquidation, Customs reclassifies the parts under an alternate classification which falls under the CAA-eligible spi Special Column. The rationale is that Customs is provided with constructive notice by having evidence of the importer's intention to file under the CAA by virtue of writing the spi "C" in front of a subheading in the HTSUS.

A claim made for duty-free treatment must take place at the time of entry and not after the parts have been reclassified. Nor can a CAA certification under section 10.183 be filed subsequent to entry, unless there exists a mistake of fact correctable under section 520(c)(1) of the Tariff Act of 1930, as amended, 19 U.S.C. 1520(c)(1). See HQ 951096. Section 1520(c) cannot be used as a basis for a protest. A petition must be filed with the port and if that petition is denied, than protestant may protest that denial.

Case law has established that where neither the importer nor Customs is aware of the nature of the imported merchandise prior to liquidation, a mistake of fact remediable under section 520(c)(1) is presented. However, when the true facts are known, but their legal significance is not, or the importer is unaware of a more favorable tariff provision, mistake of fact will not be found. Furthermore, where the importer is knowledgeable of the facts and the available alternatives, courts have held that the importer makes a "decisional" error uncorrectable under section

There are situations where a mistake of fact under 19 U.S.C. 1520(c)(1) would allow acceptance of a certificate subsequent to the liquidation of a dutiable entry. The applicability of section 1520(c)(1) is interpreted on a case-by-case basis. Generally, an error in classification is not correctable under 19 U.S.C. 1520(c)(1). The same applies to undocumented claims for preferential tariff treatment (e.g., GSP, "American Goods Returned" provisions). However, where the importer can show that a mistake of fact correctable under the statute caused the erroneous classification, relief under section 520(c)(1) will be available.

The cases and decisions included in this ruling are representative of the judicial interpretation of 19 U.S.C. 1520(c)(1) and Customs' interpretation of the law. It is also important to note that court decisions and Customs rulings have indicated that 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, but rather affords a limited relief where an unnoticed or unintentional error has been committed.

Under 19 U.S.C. 1520(c)(1) a mistake of fact is any mistake except a mistake of law. See Jordan v. Brady Transfer & Storage Co., 225 Iowa 137, 284 N.W. 73, 77 (1939). It has been defined as a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist. See Savings Bank of Rockville v. Wilcox, 117 Conn. 196, 197, 167 A. 713, 714 (1933). In Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 458 F. Supp. 1120 (1978), aff'd, 66 CCPA 113, 603 F.2d 850 (1979), the Court held that where the exporter knew the facts regarding its cost of production but erred in the assessment of those costs under the applicable law, the mistake was one law, not of fact.

In the seminal case on mistake of fact is C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, C.D. 4327, 336 F. Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974), the following test was articulated:

[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.
Mistakes 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. C.J. Tower 603 F.2d at 855.

Section 1520(c)(1), allows for the reliquidation of an entry to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of the law. Since this provision mandates that the claimed inadvertence be manifest from the record, or established by documentary evidence, we now focus on the question of whether a mistake of fact occurred based on the evidence in the record. Errors "manifest from the record" are those brought to the attention of an appropriate Customs officer within one year form the date of liquidation, and are apparent to Customs from a facial examination of the entry and entry papers alone. "Documentary evidence" is all other evidence supporting the claimed inadvertence.

The Court in PPG Industries, Inc. v. United States, 4 CIT 143 at 147-48 (1982), quoting, in part from the lower court in Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220 (1978) stated that the "burden and the duty is on the plaintiff to inform the appropriate Customs official of the alleged mistake of fact with sufficient particularity to allow remedial action." See also United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949) (holding that "[d]etermination of issues in customs litigation may not be based on supposition.") The alleged inadvertence must be described in detail to prove that factual error rather than legal error resulted. An error correctable under section 1520(c)(1), therefore, must be established by evidence, and cannot be inferred by the circumstances.

Protestant submitted an attachment to Protest No. 1704-92-100074, dated February 27, 1992, whereby an argument to reliquidate under 19 U.S.C. 1520(c)(1) was formulated. Protestant claimed that "Delta was unaware that the customs broker had not filed renewals [of the blanket certifications]...[while] the customs broker assumed that Delta had filed subsequent blanket certifications." Protestant concludes that this is inadvertence as set forth under section 1520(c)(1). Customs denied the protests based on protestant's failure to provide proper evidence of any mistake of fact, and the fact that such failure to comply with 19 C.F.R. 10.183 constituted negligent inaction, which is not a valid basis for relief under section 1520(c)(1).

As evidence, protestant submitted two affidavits. The first affidavit is from Larry L. Collier (Collier), protestant's employee, dated March 2, 1993. Collier states that he "formed the belief that customshouse brokers retained by Delta were filing entries and entry summaries consistently with all requirements and regulations regarding importations of civil aircraft parts." The second affidavit is from Conaway, a licensed customshouse broker, who signed the CAA blanket certification on December 16, 1980, on behalf of protestant. Conaway states that beginning in the mid-1980's he "assumed that Delta was aware of ... changes to the Customs Regulations and ... took any actions necessary to continue duty-free importations ..." Protestant's basis for the mistake of fact claim is that both parties (protestant and broker) were under the belief that the other had filed renewals of the subsequent CAA blanket certifications.

Courts have allowed affidavits to establish evidence in some instances. The court in Andy Mohan, Inc. v. United States, 74 Cust. Ct. 105, C.D. 4593, 396 F. Supp. 1280 (1975), aff'd 63 CCPA 104, C.A.D. 1173, 537, F.2d 516 (1976), noted that affidavits provided as evidence are only " ... entitled to little weight, being incomplete and based on unproduced records, and having been executed years after the transaction to which they attest". Mohan 63 CCPA at 107. In the case at hand, the affidavits are "incomplete" and "based on unproduced records". The affiants (Collier and Conaway) do not provide evidence of an intent to file a CAA certification.

At most, protestant's assertions and affidavits merely explain that there was an overlooking of filing a valid CAA blanket certification with Customs. Protestant failed to qualify its entries as "C" claims for all but eleven imported parts. Thus, protestant provided no evidence that there was any intent to enter civil aircraft parts pursuant to the CAA. Protestant consistently demonstrated intent to enter most of the imported parts under the unconditionally "Free" Rate of Duty subheading in the HTSUS.

The affidavits were also "executed years after the transaction to which they attest" (in this case, almost three years for Collier, and approximately ten years for Conaway, after the initial belief was formed. See, United States v. Baar & Beards, Inc., 46 CCPA 92, C.A.D. 705 (1959) (holding that an affidavit more than two years after the event to which it related, not supported by any records, is insufficient to support the basis for the claim).

Protestant's brief, dated March 4, 1993, states that the underlying mistaken belief that a valid CAA blanket certification was on file, was formed due to Customs' continuing to accept and liquidate entries duty-free. This argument carries little weight due to the fact that protestant regularly classified its entries under unconditionally "Free" subheadings in the HTSUS, which makes it difficult for Customs to make the proper determination from the face of the entry summaries. It is the importer who has an affirmative duty to determine and select the proper information upon filing the entry summary in the first place.

With regard to this case, for instance, Customs properly requested specific information on the entries from protestant through CF 28, dated October 24, 1990 and November 11, 1990. Customs sent a second CF 28 request, dated January 25, 1991, because protestant did not respond to the initial request. Further pertinent information was requested from protestant through CF 28, dated February 15, 1991. Once Customs received the necessary information from protestant, Customs determined that the entries had been erroneously classified, a classification decision which the protestant does not dispute.

Protestant also argues that intent to use its importations as civil aircraft parts was made known by the initial certification filed in 1980, and the designation on its entries of statistical reporting numbers corresponding with duty-free classifications for use in civil aircraft. However, HTSUS additional U.S. Note of Interpretation 1(b), states that "a tariff classification controlled by the actual use to which imported goods are put is satisfied only if such use is intended at the time of entry. See HQ 088178, dated January 14, 1991, (holding that duty should be assessed and any subsequent claim for relief denied where the CAA certificate is not provided or is not on file, or the importer neglects to make the "C" claim at the time of entry). Because protestant failed to claim for special treatment at the time of entry (for all except eleven imported parts), as required by the CAA, special tariff treatment cannot be granted upon liquidation, in a subsequent protest, or relief under 19 U.S.C. 1520(c)(1). Relief under 19 U.S.C. 1520(c)(1), therefore, is available only for these eleven imported parts that demonstrated intent to claim CAA. However, for the eleven imported parts where the spi "C" was claimed for special tariff treatment, protestant does not qualify for relief under 19 U.S.C. 1520(c)(1), because protestant failed to provide proper evidence of any mistake of fact, and demonstrated negligent inaction with regard to failure to comply with 19 C.F.R. 10.183.

Negligent inaction is concluded because protestant should have been aware that no valid CAA blanket certification was filed with Customs for almost ten years. Protestant, as a regular importer of civil aircraft parts, is knowledgeable of the requirements set forth under the CAA. It is a well established procedure for Customs to notify the importer directly when Customs receives a CAA blanket certification. Even if a CAA certification is submitted through a broker, Customs notifies the importer directly, since the importer has the duty to keep records that the subject merchandise will be used as civil aircraft for five years. Protestant should have been aware of this procedure, since protestant is in the business of importing civil aircraft parts. See HQ 223871, dated July 24, 1992. Protestant consistently intended to file under unconditionally "Free" Rate of Duty subheadings in the HTSUS, thereby negating the need for protestant to have a valid CAA certification on file with Customs. Protestant clearly engaged in a "decisional" error, uncorrectable under section 1520(c)(1).

Furthermore, we disagree with protestant that the case at hand is analogous to that of Aviall, supra. The CAFC held that an importer who claimed the exemption without having a valid certificate filed was entitled to show that its failure to file the required certification was correctable under 19 U.S.C. 1520(c)(1). In Aviall, the plaintiff regularly renewed its blanket certifications with the port director. The lapse between the expiration and the renewal of the CAA blanket certification was insignificant (approximately 33 days). In Aviall, the CIT emphasizes the fact that the lapse of time between the expiration of the blanket certification and the renewal was "insignificant". In contrast, in the case before us, the lapse was for almost ten years.

The plaintiff, in Aviall, also demonstrated intent to claim preferential tariff treatment under the CAA, by submitting entry summaries at the time of entry, correctly classifying the aircraft parts under the HTSUS subheadings, which were preceded by the spi "C", as required by General Headnote 3(c)(iv), HTSUS. The "C" claim gave Customs "notice" of the intent to qualify for CAA preferential tariff treatment. Arguably, in Aviall, Customs had the requisite "notice" to reject the classification, once an Import Specialist verified that the CAA blanket certification on file had expired. Consequently, the CAFC found that the importer was entitled to have the entry reliquidated duty-free because its failure to file a valid blanket certification was due to an inadvertence not amounting to an error in the construction of the law.

Protestant claims that Customs' acceptance and liquidation of entries duty-free over a period of more than ten years without a civil aircraft certification constitutes an established and uniform practice. We maintain that a uniform and established practice cannot exist for entries which require certain documentation to claim duty-free status. We recognize that the courts have found that an "established and uniform practice", under 19 U.S.C. 1315(d), can be predicated on uniform classifications and liquidations at various ports over a period of time. Heraeus-Amersil, Inc. v. United States, 617 F. Supp. 89, 9 CIT 412 (1985) (finding that a uniform and established practice had been established with regard to the classification of quartz/fused silica under items 540.11 and 540.41, Tariff Schedules of the United States).

The facts at issue in the case at hand, however, do not focus on the question of whether a certain tariff classification applies, but rather whether the subject parts entered satisfy the necessary requirements for duty-free eligibility under Chapters 88 and 84 in the HTSUS provisions. Entries under subheadings 8803.30.00/Free and 8411.91.10/Free, HTSUS, are fact specific; each entry must stand on its own particular fact situation. Hence, liquidations covering the same type of parts at a free rate of duty are not enough to establish a uniform and established practice under the subject subheadings in the HTSUS.

Unlike the facts in Aviall, there is no evidence that Customs discovered an error in the entry papers at the time of protestant's filing, and such an error was not discoverable. Customs did not have "notice" of protestant's alleged mistake of fact, since the vast majority of the entries classified in the case at hand did not bear the spi "C", which is recognized as intent to claim for duty-free treatment under the CAA. Therefore, section 141.64 of the Customs Regulations, 19 C.F.R. 141.64, did not require Customs to reject protestant's entries. Consequently, Customs Atlanta correctly assessed the amount of duties once the error was discovered. Even for the eleven imported parts that bore the spi "C" before the subheading, protestant failed to provide Customs with a valid CAA certification for almost ten years, and failed to prove that relief under section 1520(c)(1) is warranted.

HOLDING:

The protests should be denied in full. Protestant erroneously entered the imported civil aircraft parts in the entry summaries (CF 7501) by classifying the parts under unconditionally "Free" Rate of Duty" subheadings in the HTSUS. Unlike Aviall, protestant did not provide Customs with either a CAA entry-by-entry or blanket certification for almost ten years. Furthermore, for the vast majority of the entries filed, protestant failed to demonstrate intent to claim the CAA-eligible tariff provision by placing the spi "C" before the HTSUS subheading at the time of entry. Consequently, duty with the entry must be assessed and the subsequent claim for relief should be denied. For the eleven imported parts that were designated the spi "C", protestant showed intent to claim the CAA-eligible spi provision. However relief for these eleven imported parts should also be denied because a civil aircraft certification cannot be filed subsequent to entry, unless there exists a mistake of fact correctable under 19 U.S.C. 1520(c)(1). Protestant did not show that the failure to file a CAA certification for almost ten years was due to an inadvertence not amounting to an error in the construction of the law.

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 this decision must be accomplished prior to the mailing of this 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

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