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.


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 - 3 - (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.


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?


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, " 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.


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.


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