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