LIQ-9-01-RR:IT:EC 226274 AJS

Port Director of Customs
U.S. Customs Service
1000 Second Avenue
Suite 2200
Seattle, WA 98104

RE: Protest 3001-95-100049; 19 U.S.C. 1520(c)(1); error in classification; liquidation contrary to instructions; approval of similar issue in section 1520(c)(1) request; HQ 75-0026; HQ 223110.

Dear Sir or Madame:

This is our decision in protest 3001-95-100049, dated January 17, 1995, concerning the reliquidation of entries under 19 U.S.C. 1520(c)(1).

FACTS:

The subject protest consists of five entries of cathode blocks which were liquidated between August 13, 1993, and March 18, 1994. The blocks at issue were classified within subheading 8545.90.40, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles of carbon used for electrical purposes. The Customs Form (CF) 6445 states that this classification was based on testing performed by the San Francisco Customs Laboratory which the protestant claims was using the natural graphite reference sample. The protestant does not claim that the test performed by the San Francisco Laboratory was in error. At the time of entry, the protestant claims that the New Orleans Customs Laboratory was using a different testing method (i.e., synthetic graphite reference sample) to determine classification of the subject merchandise and that this method could yield a different result. A memorandum obtained from the Metals and Machinery Classification Branch of this office states that at the time of entry all

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Customs Laboratories were using the same test, but various laboratories were using either of two acceptable methods. The memorandum further states that one method involved using a synthetic graphite reference sample and the other a natural graphite reference sample. In HQ 955718 (October 4, 1994), Customs adopted the natural graphite reference sample method as the only acceptable method for testing merchandise entered after the date of that ruling. The protestant claims that Customs should have used the test method of the New Orleans Laboratory on the subject merchandise and that this test method would have yielded a different result in this case. The protestant stated it would forward testing results using this method, but no such results have been received in this office.

On August 10, 1994, the protestant filed requests under section 1520(c)(1) for reliquidation of the subject entries. The protestant asserted that there was a mistake or inadvertence in the classification and liquidation of the subject entries. On October 25, 1994, the protestant's requests were denied because they did not meet the criteria of section 1520(c)(1) as constituting a clerical error, mistake of fact or inadvertence. The subject protest was filed against this denial on January 17, 1995.

ISSUE:

Whether liquidation of the subject entries was due to a clerical error, mistake of fact or other inadvertence correctable pursuant to 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed pursuant to 19 U.S.C. 1514(c)(3)(B). The date of decision protested was October 25, 1994, and the protest was filed on January 17, 1995. In addition, the refusal to reliquidate an entry under section 1520(c)(1) is a protestable matter pursuant to 19 U.S.C. 1514(a)(7).

19 U.S.C. 1514 sets forth the proper procedure for an importer to protest the class- ification and appraisal of merchandise when it believes the Customs Service has misinterpreted the applicable law. A protest must be filed within 90 days after the notice of liquidation or reliquidation. Otherwise, the tariff treatment of merchandise is final and conclusive.

19 U.S.C. 1520(c)(1) is an exception to the finality of section 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

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to the attention of the Customs Service within one year after the date of liquidation. The relief provided for in section 1520(c)(1) is not an alternative to the relief provided for in the form of protests under section 1514; section 1520(c)(1) only affords "limited relief in the situations defined therein." Phillips Petroleum Company v. United States, 55 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).

Essentially, the protestant's claim is that the New Orleans test method used to determine classification should have been used instead of the San Francisco test method. The protestant does not assert that the San Francisco method was incorrect or that the results from this method were incorrect. Therefore, an error did not occur in the liquidation of the subject entries because the test method used as well as the test results were correct. We note that the San Francisco method has subsequently been adopted by Customs as the only method for testing the subject merchandise. 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 an error in the construction of a 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). The protestant's claim that the New Orleans test method should have used to determine the classification of the merchandise and not to do so was an error is a mistake in the classification of the subject merchandise which is required to be addressed under section 1514 and not section 1520(c)(1).

The protestant also claims that the subject entries were liquidated contrary to instructions issued to the Seattle district in response to a CF 6431 by the National Import Specialists (NIS) for the subject merchandise. The protestant cites to HQ 75-0026 (January 24, 1975) in support of this claim. That decision states that relief may be granted under section 1520(c)(1) when a Customs officer is not aware of a Headquarters classification ruling and consequently classifies merchandise differently than prescribed by the ruling. However, this ruling only relates to Headquarters rulings and not to internal Customs documents such as a response to a CF 6431. Therefore, this statement from HQ 75-0026 is inapplicable in this case.

Even if HQ 75-0026 was applicable to the subject protest, the protestant has not submitted evidence to established that a Customs officer was unaware of the above mentioned response to a CF 6431. In addition, we note that the protestant has not even submitted the claimed CF 6445 nor is such a CF 6431 included in the protest file. Nevertheless, the CF 6445 for the subject protest states that advice was obtained from the appropriate NISs and this statement is supported in a memorandum to the file dated July 19, 1993, by the import specialist (IS). Absent evidence to the contrary, we assume that the appropriate NIS would have notified

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the IS of any applicable response to a CF 6431 or at a minimum Customs position from any applicable response to a CF 6431. Therefore, it appears that a Customs officer was aware of the information necessary to make a proper classification decision. We note that HQ 75-0026 also states that "[i]in applying a Headquarters classification ruling to a particular shipment, an import specialist's function is not merely ministerial. He must still use his judgement and expertise in deciding whether that ruling is applicable to the merchandise he is classifying. If he makes an incorrect decision, he has made an error in the construction of a law, and the error is not correctable under section 520(c)(1)." The CF 6445 states that the classification of these entries was duly considered before liquidation. The CF 6445 states this is evidenced by the laboratory reports obtained as well as advice sought and obtained from the appropriate NISs. The CF 6445 concludes that if there was any error in the classification of the subject entries it was an error in the construction of law. These statements also indicate the appropriate Customs officer was aware of any necessary classification information and that if there was any error in the liquidation of the subject entries is was an error in the construction of a law. Inasmuch as Customs used the test method then currently in use for classification of the subject merchandise and this method is not claimed to be in error, an error in the construction of law did not occur.

The protestant additionally asserts that your port approved a similar issue on a section 1520(c)(1) petition. In HQ 223110 (May 2, 1991), the protestant challenged the refusal of Customs to reliquidate certain entries of pneumatic tools under section 1520(c)(1). In support of its claim, the protestant indicated that the Customs district office had previously approved a section 1514 protest against the classification of the same merchandise. Customs refused protestant's argument indicating:

It is a well established principle that every transaction stands independently, and absent an "established and uniform practice" the determination to liquidate one entry is not binding upon subsequent entries . . . .

The approval of one protest permitting liquidation of specific merchandise is not proof of an "established and uniform" practice. The previously approved protest, therefore, would not have any binding effect on the approval of the claim brought under section 1520(c).

We find this decision instructive for determining that the previous reliquidation of an entry pursuant to section 1520(c)(1) is also not binding on the subsequent liquidation of entries absent an established and uniform practice. No established and uniform practice has been asserted in this instance.

HOLDING:

The protest is denied. Liquidation of the subject entries was not due to a clerical error, mistake of fact or other inadvertence correctable pursuant to 19 U.S.C. 1520(c)(1).

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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,

Director,

International Trade Compliance Division