LIQ-9-01-RR:IT:EC 226456 GEV
Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044
RE: Application for further review of Protest No. 2304-95-100080; 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; T.D. 54848; HQ Rulings
220042, 222853, 223524
Dear Sir or Madame:
This is in response to your memorandum dated September 11,
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.
1520(c)(1).
The protestant filed 27 entries from July 7, 1993, through
March 4, 1994, covering imported fresh Persian limes from Mexico.
The protest review sheet included in the documen- tation you
forwarded notes that three of the entries listed on the
continuation sheets attached to the CF 19 (entry nos. 2305-439-0041340-2, 2305-439-0041358-4 and 2305-439-0041361-8) were not
filed by the protestant. These entries were therefore not
considered in our decision. With respect to the remaining
entries that are under consideration, the subject limes
referenced therein 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 2.2 cents per kilogram in 1993 and 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
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covering the entries in question (i.e., an Entry Summary (CF
7501), an invoice from a Mexican vendor, and a Federal-State
Inspection Certificate issued by the U.S. Department of
Agriculture). The aforementioned entry documentation
specifically identifies the limes as "sin simella" (without
seeds), or "Mexico Persian seedless limes," or simply "limes:
fresh or dried." Subheading 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," dutiable at 0.9% in 1993 and free in
1994.
These entries were liquidated as entered from November 12,
1993, through June 12, 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) This 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 November 14, 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 "mistakenly classified
as fresh 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 February 8, 1995.
The protest at issue was filed on May 9, 1995. It provides,
in pertinent part, as follows:
The importer, the customs broker, and the Import Specialist
at all times (i.e.,
at the time of each entry, at the time of each liquidation,
and for the period of
90 days following the date of each liquidation) mistakenly
believed, and acted
upon their mistaken belief, that the instant Mexican Persian
limes were of one
variety (i.e., Citrus aurantifolia), when, in fact, they
were of another variety
(i.e., Citrus latifolia).
As a result of this mistake of fact, repeated thousands of
times over a period
of over 5 years by this importer, the entire Mexican lime
import industry,
multiple customs brokers, and multiple Laredo district
Customs Import
Specialists, these limes were misclassified upon entry by
the Customs broker
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(who did not know and the documents did not reflect that
these Persian limes
were citrus latifolia, rather than citrus aurantifolia), and
were misclassified
upon liquidation by the import specialist (who did not know
and the documents
did not reflect that these Persian limes were citrus
latifolia, rather than citrus
aurantifolia). (See p. 10 of the CF 19 continuation
sheets.)
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), T.D. 54848, and Headquarters Rulings
220042, 222853 and 223524. In addition, pursuant to a meeting at
Customs Headquarters on February 15, 1996, between counsel for
the protestant, the Chief, Entry and Carrier Rulings Branch, and
the staff attorney handling the case, counsel was given
permission to submit additional documentation in support of the
protestant's claims. This additional documentation, in the form
of twenty-three affidavits from various Customs brokers,
importers and growers of the subject limes, was subsequently
forwarded by a letter from counsel dated March 21, 1996.
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 February 8, 1995, and the protest was filed on May
9, 1995. In addition, the refusal to reliquidate an entry under
1520(c)(1) is a protestable matter pursuant to 19 U.S.C.
1514(a)(7).
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
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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 this
misclassification arose out of a "mistake of fact" citing T.D.
54848 which states that a "[m]istake of fact occurs when a person
believes the facts to be other than they really are and takes
action based on that erroneous belief. The reasons for the
belief may be that a fact exists but is unknown to the person or
he may be convinced that something is a fact when in reality it
is not." 94 Treas. Dec. 244, 245 (May 6, 1959) Consequently,
the protestant believes the alleged mistake of fact is
correctable under 19 U.S.C. 1520(c)(1). In this regard, it is
contended that the requisite criteria for relief pursuant thereto
have been met (i.e., the error is adverse to the importer since
entry and the resultant liquidation were at a too-high rate; it
is manifest from the entry documentation; and it was brought to
the attention of Customs within one year after the date of
liquidation).
With respect to the protestant's claim, it should be noted
that 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, 889 F.Supp. 1543 (CIT, June
13, 1995) citing C.J. Tower & Sons, 68 Cust.Ct. at 22, 336
F.Supp. at 1399. We find the court's decision in Tower
inapplicable in this case because the entry documentation
submitted with the protest, although not reflecting the correct
Latin taxonomic description of the subject limes (i.e., "citrus
latifolia"), nonetheless indicates that the protestant was aware
of the specific variety of limes being purchased (i.e., Persian
limes without seeds).
With respect to the three Headquarters Rulings cited in the
protest, we find them to support Customs position in this matter,
rather than that of the protestant.
In HQ Ruling 220042, the issue under consideration was the
misclassification of boots. The importer in that case claimed
that its agent did not know all the facts necessary to make a
correct classification. It was subsequently found that the agent
had access to the information through entry documents that he
filed with Customs. Thus, since both the agent and the Customs
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officer had all documentation necessary to correctly classify the
subject merchandise, it was held that their collective errors in
judgement did not constitute a mistake of fact but rather a
mistake in the construction of law not correctable under 19
U.S.C. 1520(c)(1). In distinguishing this ruling from the
subject protest, the protestant states, "In the instant case, the
customs broker had no document or other evidence indicating that
these limes were citrus latifolia, rather than citrus
aurantifolia; hence, the customs broker did not have all of the
documentation necessary to file a correct entry." (See protest
at p. 5) The protestant further states, "None of the entry
documents included any description other than Persian
limes'...There was no statement in the accompanying documentation
as to whether the limes were of the latifolia or aurantifolia
variety." (See protest at p. 6) We disagree. The Federal-State
Inspection Certificate issued by the U.S. Department of
Agriculture and the invoice from the Mexican vendor described the
subject limes as "Mexico Persian seedless" and "LIMON PERSA SIN
SEMILLA" (i.e., Persian seedless limes), respectively.
Consequently, the entry documents, although not containing the
botanical designation citrus latifolia, do in fact constitute
evidence that the limes in question were of the latifolia
variety. The error in question was therefore not manifest from
the record as is required for reliquidation under 19 U.S.C.
1520(c)(1). Consequently, the holding in HQ Ruling 220042,
rather than being distinguishable from the subject protest, is
directly on point.
In HQ Ruling 222853, two "Rotadisc" driers were classified
by the importer's customs broker under a non-agricultural
provision because the broker was not aware that the driers were
principally used in agricultural operations. The ruling held
that the failure of the broker to properly determine the
principal use of the merchandise was not a mistake of fact
correctable under 19 U.S.C. 1520(c)(1) in view of the fact that
the packing list submitted with the entry summary clearly stated
that the merchandise was a grain drying system. The error
therefore was not manifest from the record. It was determined
that the customs broker made the wrong choice between two
alternative classifications. Decisional mistakes are not
correctable under 19 U.S.C. 1520(c)(1). Universal Cooperatives
v. United States, 13 CIT 516, 518, 715 F.Supp. 1113, 1114 (1989).
Consequently, the holding in HQ Ruling 222853, like that of HQ
Ruling 220042 discussed above, is directly on point with, rather
than be distinguishable from, the subject protest.
In contrasting the facts of HQ Ruling 222853 with those
under consideration in the subject protest, counsel for the
protestant states that, "Customs, in mid-1994, admitted that it
had been unaware of the material fact at the time of liquidation.
That is, Customs admitted that the limes were of the latifolia
variety, whereas theretofore (at the time of each of the
thousands of liquidations) they had mistakenly believed that they
were of the aurantifolia variety." If the "admission" to which
counsel is referring is Customs Administrative Message No. 94-0661, dated June 30, 1994, it should be noted that this 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
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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. If, on the other hand, the "admission" to which
counsel is referring is Customs granting of protests filed
pursuant to 19 U.S.C. 1514, we reiterate that that is the proper
avenue for relief in this matter, not a request pursuant to 19
U.S.C. 1520(c)(1).
In HQ Ruling 223524, three factual scenarios were
considered, each of which concerned the misclassification of
merchandise. Customs held that only one was supported by
evidence sufficient to grant reliquidation based on a mistake of
fact. In this scenario the evidence in question consisted of
invoices with misleading words (i.e., the words "CHIEF VALUE
WOOL" appeared on the invoices when in fact the merchandise was
in chief value of silk). The holding of the ruling specifically
states, in pertinent part, "On the facts here, where the record
shows that the invoice contained an erroneous description of the
merchandise, and where the record indicates that such
misdescription reasonably caused the broker and Customs to
misunderstand that nature of the merchandise, there is sufficient
evidence upon which to base a finding of mistake of fact."
(Emphasis added, HQ Ruling 223524 at p. 6) It goes on to state,
"Where the invoice is not materially misleading, and there is
lacking sufficient other evidence that a mistake of fact - as
opposed to an error of law - is responsible for an erroneous
classification, mistake of fact will not be found because of this
failure of evidence." (Emphasis added, Id.)
Notwithstanding counsel's claims to the contrary, the above-described factual scenario of HQ Ruling 223524 in which
reliquidation was granted pursuant to 19 U.S.C. 1520(c)(1) is
distinguishable from the facts of the subject protest. At the
outset, we note counsel's admission that, "...in the instant
case, the invoices contained no misleading information." (CF 19
continuation sheets at p. 7) Counsel, however, then goes on to
state that with respect to the invoices covering the subject
limes, "...neither did they contain sufficient information to
dispel the mistaken understanding on the part of the customs
broker in preparing the entry and the import specialist in
liquidation, to wit: that the limes were not of the aurantifolia
variety, as they believed, but of the latifolia variety." Id. As
discussed above, notwithstanding the absence of the correct
botanical description, the entry documentation indicates to all
parties concerned that the limes covered thereby are Persian
seedless limes which are of the latifolia variety covered by
subheading 0805.90.0010, HTSUS. Consequently, the aforementioned
documentation did contain sufficient information from which to
make a correct classification.
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
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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). In this
regard we note that the twenty-three affidavits submitted by
counsel from various Customs brokers, importers and growers of
the subject limes are merely statements devoid of evidentiary
support with respect to the claim that the error in question was
based on a mistake of fact. They merely corroborate that which
has already been established, i.e., that the subject limes were
misclassified. In this regard we note that it is a well known
legal axiom that testimony or other evidence consisting solely of
conclusional statements must be supported by evidentiary facts.
(See Andy Mohan v. United States, C.D. 4593, citing Brooks Paper
Co. v. United States, 40 CCPA 38, C.A.D. 495 (1952)). 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, pursuant to T.D. 54848
"occurs 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." The error in the construction of law
in this and another other such cases can only be 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.
1520(c)(1).
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
International Trade Compliance
Division