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HQ 223630

March 19, 1992

LIQ-9-01-CO:R:C:E 223630 CB


District Director
U.S. Customs Service
Suite 200
477 Michigan Avenue
Detroit, MI 48266

RE: Application for further review of Protests No. 3801-1- 101850 and 3801-1-102069; mistake of fact correctable under 19 U.S.C. 1520(c)(1); correctable error must be manifest from the record or established by documentary evidence

Dear Sir:

The above-referenced protests were forwarded to this office for further review. We have considered the points raised and our decision follows.


The two protests involve 9 entries of merchandise entered under subheading 8705.90.0000 of the Harmonized Tariff Schedule of the United States (HTSUS) at a duty rate of 2.9% ad valorem. The entries were made between December 13, 1989 and July 3, 1990. The entries were liquidated between March 23, 1990 and October 19, 1990. According to Protestant, the classification as originally entered was based upon a Notice of Action issued by Customs in Buffalo, New York on July 17, 1989.

HQ 087028 was issued on August 13, 1990, classifying the subject merchandise under subheading 8704.90.0000, HTSUS. Customs in Buffalo and Detroit subsequently approved some protests allowing for classification under subheading 8704.90.0000, HTSUS. You state that all of the protests that were approved were filed timely and approved after HQ 087028 was issued. You also state that, at the time these entries were filed, it was Customs position both in Buffalo and Detroit that the merchandise was correctly classifiable under subheading 8705.90.0000, HTSUS.

After 90 days from the dates of liquidation, but within one year of such dates, Protestant filed requests for reliquidation under 19 U.S.C. 1520(c)(1), asserting that errors correctable under the statute had occurred causing misclassification of the -2-
merchandise. The 1520(c)(1) requests respecting the above entries were denied on the ground that the misclassification was a mistake of in the construction of law and, thus, not correctable under the statute. Protestant filed the instant protests against these denials under 19 U.S.C. 1514(a)(7).


Whether liquidation of the subject entries was a mistake of fact correctable under 19 U.S.C. 1520(c)(1)?


Initially, we note that Protestant's requests for reliquidation under 19 U.S.C. 1520(c)(1) and its instant protests filed under 19 U.S.C. 1514(a)(7) were filed timely. Its application for further review of these protests are proper under 19 CFR 174.24(a) or (c).

Section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514 (1982)), 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 appplicable 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. Under the entry processing scheme, it is the protest procedure that provides for redress of errors in the liquidation of entries. Virtually any error in the liquidation can be corrected if brought to Customs attention within 90 days of the date of liquidation. Such redress is not available if the 90-day period has expired.

Section 520, Tariff Act of 1930, as amended (19 U.S.C. 1520 (c)(1)), is an exception to the finality of 1514. An entry may be reliquidated to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law. Certain conditions must be met. These are: 1) the error is adverse to the importer's interest; 2) the error is manifest from the record or established by documentary evidence; and 3) the error is brought to Customs attention within one year of the date of liquidation. Section 1520(c)(1) provides only limited relief in the situations described therein. Phillips Petroleum Company v. United States, 54 CCPA 7, 11, C.A.D. 893 (1966); Computime, Inc. v. United States, 9 CIT 553, 555, 622 F. Supp. 1083 (1985); Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F. Supp. 623 (1986). It is not the purpose of the reliquidation provision of 19 U.S.C. 1520(c)(1) to extend the period for filing objections that are properly redressable under the protest procedure.

The Customs Service has previously ruled that certain classification errors may be corrected under 1520(c)(1). HQ Ruling 75-0026, issued January 24, 1975, indicates that reliquidation is proper when a Customs officer is not aware of a classification ruling. However, the ruling goes on to state that if an import specialist takes note of a Headquarters ruling, and decides it is not applicable to the merchandise, that decision is an error in the construction of a law, excluded from relief under section 520(c)(1). In the instant case, the record indicates that the import specialist was aware of the classification ruling subsequent to his reporting the entries for classification but erroneously believed that it did not apply to the subject entries because the entries were filed prior to the issuance of the ruling. Although the regulations provide that a classification ruling is applicable to unliquidated entries (19 CFR 177.9(a)), the import specialist's incorrect reading of the regulations is a mistake of law not correctable under 19
U.S.C. 1520(c)(1).


A Customs officer's belief that a classification ruling is inapplicable to an entry is a mistake of law not correctable under 19 U.S.C. 1520(c)(1). Therefore, you should deny these protests in full.

A copy of this decision should be attached to the CF 19, Notice of Action, and sent to protestant to satisfy the notice requirement of section 174.30(a), Customs Regulations.


John Durant, Director

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