Customs Ruling HQ 227912 - Protest and Application for Further Review No. 0712-97-100793; clerical error, mistake of fact or other inadvertence; titanium dioxide; 19 U.S.C. §1520(c)(1); 19 U.S.C. §1514; 19 CFR 173.4; timeliness; sufficiency; broker

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HQ 227912
Jan 19, 1999

Type : Liquidation • HTSUS :
Related: A82920; 223524; 224657; 220042

LIQ-9-01-RR:CR:DR 227912 IOR

Port Director
U.S. Customs Service
198 West Service Road
Champlain, NY 12919
Attn: C.L. Noyes, SIS

RE: Protest and Application for Further Review No. 0712-97-100793; clerical error, mistake of fact or other inadvertence; titanium dioxide; 19 U.S.C. §1520(c)(1); 19 U.S.C. §1514; 19 CFR 173.4; timeliness; sufficiency; broker

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided, the arguments made by the protestant, and Customs records. An April 18, 1996 letter, discussed in the FACTS section below, asserts that the information contained therein is confidential. After conversation with counsel for protestant we understand that the request for confidential treatment is limited to the dollar amounts of the transactions at issue, and a table which contains technical descriptions of the subject merchandise. In addition, confidential treatment is also sought for documents attached to a September 3, 1996 letter, discussed in the FACTS section below, specifically an invoice and CF 7501, which show the transaction prices for the subject merchandise. We agree to grant confidentiality to the technical descriptions of the subject merchandise and the transaction prices for the subject merchandise, under Customs Regulations 103.12 (19 CFR 103.12). With respect to the dollar amounts of the transactions at issue, we will treat the request as provided under Treasury Regulations 1.6 (31 CFR 1.6). Section 1.6(c)(2) provides that the submitter of the information will be advised of receipt of a request for disclosure under the Freedom of Information Act whenever the submitter has in good faith designated the information as commercially or financially sensitive information. Accordingly, the protestant will be notified if a disclosure request is received by this office. At that time, pursuant to 1.6(d), the protestant will be afforded ten working days within which to provide a detailed statement of any objection to disclosure, specifying grounds for privilege or confidentiality.

FACTS:

The subject protest covers 264 entries of titanium dioxide made from January 4, 1995 through October 30, 1995, in the ports of Massena, Champlain, and Alexandria Bay, New York, all of which are serviced by Champlain. The merchandise was entered as “TITANIUM OXIDES” under subheading 2823.00.0000, Harmonized Tariff Schedule of the United States (HTSUS). According to the protestant, and the representative entry (no. 331-xxxx0980), in 1995, titanium oxides imported from Canada had a duty rate of 1.8%, which was the special column 1 rate of duty based on the merchandise having originated in Canada. The representative CF 7501 identifies the protestant’s broker (hereinafter referred to as “broker”) on the form, and the protestant is the importer. The broker filed the entries as the protestant’s agent. The entries were liquidated as entered from April 28, 1995 through April 12, 1996. On February 29, 1996, Customs at St. Albans, Vermont, issued a CF 29 to the protestant, in care of the broker. The CF 29 proposed classification of the merchandise, described as “titanium dioxide pigment” under subheading 3206.10.0010, HTSUS. This subheading, according to the protestant, provided for a free rate of duty for titanium dioxide imported from Canada, in 1995 and 1996. The CF 29 proposes to refund the duty paid to the protestant, upon receipt of a certificate of origin for the merchandise. The entry which is the subject of the CF 29 is not one of those protested herein.

By letter dated April 18, 1996, the protestant sent a request for 1) a ruling on the protestant’s titanium dioxide products, 2) a change in the tariff classification of such merchandise for those unliquidated entries made between January 1, 1995 and April 15, 1996, and 3) reliquidation pursuant to 19 U.S.C. §1520(c) for entries of the subject product, which were liquidated after January 1, 1995, “based on clerical error, mistake of fact, or other inadvertence”. The letter discusses the difference between titanium oxides classified under subheading 2823.00.0000, HTSUS, and titanium dioxide classified under subheading 3206.10.0010, HTSUS, and states that the subject merchandise was surface-treated. The letter provides specifications for the merchandise and states that samples for testing are available. The letter contains a table which identifies the ports of entry of the merchandise since January 1, 1995, and states “[a] detailed schedule of liquidated entries from January 1, 1995 to April 15, 1996 (by port of entry) for each of the six [protestant’s] products described above can be provided as may be required” and “[a]s soon as possible...our Customs Broker...will file individual protests of each of these liquidated past entries, requesting refund of tariffs paid by mistake from each of the respective ports of entry.” With respect to reliquidation, the letter states that the protestant’s “inaction” with respect to the “incorrect classification” was “due to an inadvertent mistake of fact only recently uncovered” by the protestant. Finally, the letter states that the protestant “has directed its broker to designate the [subject merchandise] as duty-free under heading 3206 in all future importations from Canada to the United States after April 18, 1996.” (Emphasis supplied). The letter does not have any and makes no reference to any attachments.

On July 11, 1996, in response to the protestant’s April 18, 1996 letter, NY Ruling A82920 was issued, and stated that the classification for the merchandise which is the subject of the protest, is under subheading 3206.11.0000, HTSUS. With respect to duty rate, the ruling letter stated that the column 1 general rate of duty will be 6% ad valorem, and:

Under General Note 12, of the HTS, goods originating in the territory of a party to the [NAFTA] are subject to duty as provided therein. However, there is insufficient information concerning the origin of the materials used in the manufacture of the goods under consideration and their regional values, if applicable, to determine eligibility at this time under the NAFTA column 1 special rate.

In response to the request for reliquidation pursuant to 19 U.S.C. §1520(c), the ruling letter informed the protestant that “[a]ny claim or protest against the liquidation of an entry should be filed in accordance with 19 CFR 173/4 with the district/port director at the port where the entries were filed.”

Three letters dated September 3, 1996 (hereinafter referred to as “letter of September 3"), from the broker were submitted to the Port Director at Champlain, New York, and are recorded in Customs records as two having been filed on December 10, 1996 (for entries made in Massena and Alexandria Bay) and one on December 17, 1996 (for entries made in Champlain), at Champlain. The letter of September 3, requests reliquidation, under 19 U.S.C. §1520(c)(1), of the entries listed in an attached addendum. The letter of September 3, attached the April 18, 1996 ruling request to New York, the July 11, 1996 ruling letter from New York, and the undated declarations of two employees, Mr. Joseph Fiocco and Mr. Robert Hicks, of the protestant.

The declarations are submitted to show by documentary evidence “the fact that an instance of inadvertence occurred rather than a deliberate choice, and to specify the nature and circumstances of the factual mistake.” In summary, the declarations indicate that the classification of the merchandise was discussed in 1989, at which time Mr. Hicks, distribution administrator for the protestant, obtained information, by facsimile (“fax”) from Customs Headquarters regarding the classification of titanium oxide and titanium dioxide. The fax from Customs states that surface-treated TiO2 is a pigment in heading 3206.10, and non-surface-treated TiO2 is not pigment grade material and is classified as a chemical in heading 2823.00. The fax contained other information and details regarding surface-treatment, and specifically stated that the position stated therein is not Customs official position and is not binding on the Customs Service. In response to Mr. Hicks’ question, to the technical employees of the protestant, of what is the appropriate classification of the merchandise, Mr. Fiocco replied in 1989, that the subject merchandise is not surface treated for classification purposes. Mr. Fiocco states in his declaration that he was mislead by the language in the Customs fax, and because of his misunderstanding, in informing Mr. Hicks that the merchandise was not surface-treated, he did not take into consideration substances added to the manufacturing process in stages other than the post-calcination treatments, and that he did not apply the normal scientific construction of the term “surface-treated.” Mr. Hicks was provided with Mr. Fiocco’s conclusion, and states that he was not aware of other surface treatment in the process. The two declarations are undated, however, the declaration of Mr. Fiocco states that he learned of the existence of the error in August, 1996 when he was requested to reconstruct the facts that led to the mistake.

By letter dated April 8, 1997, to the broker, the petitions for reliquidation were denied on the grounds that 1) the cited New York ruling is not applicable to entries liquidated prior to the issuance of the ruling; 2) most classification errors cannot be corrected under 19 U.S.C. §1520(c)(1), the appropriate remedy being a protest under 19 U.S.C. §1514, and alternatively the protestant could have sought a binding ruling request in 1989 when the issues arose, and in this case the mistake amounted to a mistake in the construction of law; and 3) the 1520(c) petitions were untimely as to those entries liquidated over one year prior to the date of receipt of the petitions, because they were not brought to the attention of the Port Director as required by 19 CFR 173.4(c). On July 2, 1997, a protest was filed against Customs April 8, 1997 denial of the petitions for reliquidation.

ISSUE:

May relief be granted under 19 U.S.C. §1520(c)(1) in this protest.

LAW AND ANALYSIS:

Initially we note that this protest was timely filed pursuant to 19 U.S.C. §1514(c)(3). The date of decision to deny reliquidation under 19 U.S.C. §1520(c)(1), was April 8, 1997, and the protest was filed on July 2, 1997. The refusal to reliquidate an entry under 19 U.S.C. §1520(c)(1) is a protestable matter pursuant to 19 U.S.C. §1514(a)(7).

There is an issue as to whether the petitions for reliquidation were timely filed, and whether they were sufficient. The statutory provision for reliquidation, in 19 U.S.C. §1520(c)(1) requires that the claimed error, mistake, or inadvertence be brought to the “attention of the Customs Service within one year after the date of liquidation” (emphasis added). Prior to amendment of the statute, by section 646, title VI-Customs Modernization, Public Law 103-182 the North American Free Trade Implementation Act (107 stat 2057) enacted December 8, 1993, the above provision required that the error, mistake or inadvertence be brought to the attention of the “appropriate customs officer.” The regulations implementing the statute, Customs Regulations 173.4 (19 CFR 173.4), require that the error, etc. be brought to the attention of the director of the port of entry. Prior to the amendment of the regulations, the error etc. had to be brought to the attention of the district director at the port of entry. T.D. 95-77, effective September 30, 1995, changed the language in the regulation, from “district director at the port of entry” to “director of the port of entry” to implement Customs reorganization. T.D. 95-77 states that the revisions are nonsubstantive or merely procedural in nature. The legislative history for the amendment of the statute, in the House Report 103-361, and the Senate Report 103-189, does not mention the change regarding to whose attention the error is to be brought. The protestant takes the following position:

[Protestant] was no longer obligated to bring the reliquidation request to the attention of a specific Customs officer. The clear language of the amended statute, which was more recently adopted than that of the corresponding Customs regulation, requires only that the Customs Service, not the port or area director, be notified....In addition, Customs regulations must be in harmony with the tariff statute in question; regulations which are not in conformity with the statute are invalid. [Citations omitted]. Because Congress deliberately expanded the language of §520(c), the Customs Service, regardless of location, is legally obligated by statute to accept [the protestant’s] original; reliquidation petition as timely.

(Emphasis supplied). We disagree with protestant’s position. First, as described above, the regulation implementing the subject statute was amended after the amendment of the statute. The statute was amended December 8, 1993, and the regulation was amended, effective September 30, 1995. Therefore, the language of the statute was not more recently adopted than that of the corresponding regulation, as claimed by the protestant. As stated in T.D. 95-77, pursuant to 5 U.S.C. §553(a)(2) and (b)(5), public notice was inapplicable to the interim regulations (interim pending adoption of the regulations as final after consideration of comments), because they “concern matters relating to agency management and personnel.” We find that the regulation is in harmony with the amended statute, as the current regulation implements the amended statute, in the same manner as the prior regulation implemented the statute prior to its amendment, by specifying to whose attention the petition for reliquidation is to be brought. Prior to the amendment, the statute required that the notice be given to the “appropriate customs officer.” Both the prior language and the current language are in equal need of the specificity provided by the regulations. Under the former language, without more, the petitioner would not know who the appropriate customs officer is, and under the current language, as obviously “the Customs Service” is not a person to which the notice of the error can be given. Without more specificity, a petitioner driving into the U.S. from Canada could hand the notice to the inspector at the border, or even drop a letter into the booth, and claim that proper notice was given. If such a dramatic change had been intended, surely it would have been reflected in the legislative history. This obviously was not the intent of the legislature, The courts have consistently held that protests and petitions for administrative review must be filed at the proper place indicated in the regulations. See Wolf D. Barth Company v. United States, 81 Cust. Ct. 127, C.D. 4778 (1987).

Finally, there is no requirement that an agency must re-promulgate a pre-existing regulation that is not inconsistent with a subsequent statute, in order for the regulation to remain effective. The relationship between regulations and statutes, and annulment of regulations upon enactment of statutes is stated as follows:

Administrative rules must conform to the laws enacted by the legislature. .... A regulation, valid when promulgated, becomes invalid upon the enactment of a statute in conflict with the regulation. However, an administrative regulation will not be considered as having been impliedly annulled by a subsequent act of the legislature unless the two are irreconcilable, clearly repugnant, and so inconsistent that they cannot have concurrent operation. Moreover, implied repeal of a regulation by a statute is disfavored, especially where the regulation has been approved by the legislative regulation review committee. .... If a regulation has been in existence for a substantial period of time and the legislature has not sought to override the regulation, this fact, although not determinative, provides persuasive evidence of the continued validity of the regulation.

2 Am. Jur. 2d Administrative Law §227 (1994) (emphasis added). We do not find that the statute is in conflict with the regulation, irreconcilable with the regulation, clearly repugnant or so inconsistent that the statute and regulation cannot have concurrent operation.

On the basis of the foregoing, we find that as the April 18, 1996 petition for reliquidation was filed in the Newark/New York Seaport, not Champlain, New York, where the entries were made, it was therefore was not filed at the proper place indicated in the regulations.

Even assuming the petition was filed in an acceptable location, we must determine whether the April 18, 1996 petition itself was sufficient to notify Customs of an alleged mistake of fact under 19 U.S.C. §1520(c)(1). The one year limitation applies to notification of the alleged mistake of fact, and not documentation of the error. ITT Corporation v. United States, 24 F.3d 1384 (Fed. Cir. 1994) at 1388. The April 18, 1996 petition did not describe the alleged mistake at all, no documentation was provided in support of the petition, and the petition did not specifically identify the entries for which liquidation was sought. The April 18, 1996 petition made absolutely no reference as to what the mistake may have been or who it was made by. There is no reference to the declarations of the protestant’s employees in the petition, and as one of the declarations states that the mistake wasn’t brought to the employee’s attention until August, 1996, which is after the filing of the petition in the Newark/New York seaport, we must conclude that the declarations were not submitted with the April 18, 1996 petition. From the petition, it is only apparent that the mistake had to do with classification, and the classification had to do with surface treatment. An importer must assert the existence of a clerical error, mistake of fact or other inadvertence to Customs “within the proper time and with sufficient particularity to allow remedial action.” ITT Corporation v. United States, supra, at 1387, quoting Hambro Automotive Corp. v. United States, 458 F. Supp. 1220, 1222 (Cust. Ct. 1978) (see infra). Under ITT, the April 18, 1996 petition did not provide notice of a mistake of fact with sufficient particularity to allow remedial action. Merely stating that a mistake occurred with nothing more than a discussion of classification issues is not of sufficient particularity to allow Customs to determine whether the mistake was one of fact or law.

The petitions filed September 10 and 17, 1996, did state with sufficient particularity the alleged mistake of fact. However, those petitions were only timely with respect to a portion of the entries. The petition filed September 10, 1996 for entries made at Alexandria Bay, was only timely for 6 of the 13 entries made (7 entries were liquidated prior to September 10, 1995). The petition filed September 10, 1996 for entries made at Massena, was timely for one of the two entries made (one entry was liquidated prior to September 10, 1995). The petition filed on September 17, 1996 for entries made at Champlain was only timely for 124 of the 249 entries made (125 entries were liquidated prior to September 17, 1995). Therefore, the September 10 and 17, 1996 petitions were only timely for a total of 131 of the 264 total entries made.

With respect to the 131 entries for which timely petitions were filed, and even if the reliquidation of the other 133 entries had been sufficiently requested and properly filed, we next address whether the protestant has met the other requirements of 19 U.S.C. §1520(c)(1).

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.

19 U.S.C. §1520(c)(1) is an exception to the finality of 1514. Under section 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; section 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 GodchauxHenderson Sugar Co., Inc., v. United 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)).

For section 1520(c)(1) purposes, a mistake of fact has been defined as “a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist.” C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 21, C.D. 4327, 336 F. Supp. 1395, 1398 (1972), aff’d, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974).

Essentially the protestant’s claim is that the subject merchandise was classified under the wrong HTSUS provision. The mistake alleged by the protestant is that the protestant’s employees Mr. Hicks and Mr. Fiocco were unaware that for classification purposes, the subject merchandise was “surface-treated.” According to the facts Mr. Hicks relied on Mr. Fiocco’s assertion that the merchandise is not surface-treated, and did not have personal knowledge as to the exact characteristics of the merchandise. There is no indication or assertion that Mr. Fiocco was unaware as to the nature of the merchandise. To the contrary, his statement reflects that he was fully aware of the exact nature of the merchandise. He was trying to determine for purposes of classification, the character of the merchandise.

Customs is satisfied that an error occurred in the liquidation of the entries, and that the correct classification for the merchandise was under subheading 3206.11.0000, HTSUS. In addition, Customs is satisfied that the subject entries were entitled to the Column 1 special duty rates, as a positive NAFTA verification was completed in 1996 in St. Albans, and under the NAFTA verification process currently taking place in Champlain, the merchandise appears to qualify for NAFTA preferential treatment. The entries were treated as being of Canadian origin for purposes of liquidation under subheading 2823.00.00, HTSUS.

As we agree there was a classification error in the liquidation we must address the alleged mistake of fact. 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 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, 336 F.Supp. 1395, 68 Cust. Ct. 17, C.D. 4327, aff’d. 499 F.2d 1277, 61 CCPA 90 (1972). Here, the only error set forth by the protestant is one involving the classification of the imported merchandise. Customs has found that an exception exists and reliquidation is proper when a Customs officer is not aware of a classification ruling. ORR Ruling 75-0026, dated January 24, 1975. ORR Ruling 75-0026 also states, however, 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 the law, excluded from relief under 19 U.S.C. §1520(c)(1). The limited exception described in ORR Ruling 75-0026 does not apply in this case, as the New York ruling was issued after the subject entries were liquidated.

In C.J. Tower, supra, the U.S. Court of Customs and Patent Appeals found a mistake of fact existed where neither the importer nor Customs was aware that the merchandise under consideration was emergency war materials entitled to duty-free entry under a separate item of the tariff schedule until after liquidation. The court found that this mistake of fact was correctable under section 1520(c)(1) because it was a mistake that went to the nature of the merchandise and was the underlying cause for its incorrect classification. See Taban Co. v. United States, 960 F. Supp. 326 (CIT 1997) and Zaki Corp. v. United States, 960 F. Supp. 350 (CIT 1997) (wherein the U.S. Court of International Trade (CIT) found that there was a mistake of fact, rather than one of law, because “the ‘exact physical properties’ of the merchandise were not known to the broker or to Customs in this case”); HQ 223524, dated February 13, 1992 (wherein we found a mistake of fact where merchandise was classified as a wool fabric, because it had been identified on an invoice as “chief value wool” when in fact it was “chief value silk”).

As stated above, a mistake of fact must be manifest from the record or established by documentary evidence. 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 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 ITT Corp. v. United States, 24 F.3d 1384, 1387 (Fed. Cir. 1994), the court found that reliquidation under 19 U.S.C. §1520(c) requires both notice and substantiation. Notice of a clerical error, mistake of fact, or other inadvertence includes asserting the existence of a clerical error, mistake of fact, or other inadvertence “within the proper time and with sufficient particularity to allow remedial action.” Id. With respect to substantiation, the court stated “[m]istakes of fact that are not manifest from [the] record ... must be established by documentary evidence.” Id. In a footnote on p. 1389, in discussing the type of evidence that can be considered at trial, the court referred to a Customs assertion that a claim of mistake of fact must be supported by evidence (testimony or other credible proof) “of the underlying facts that demonstrate the existence of such error,” and that the plaintiff/importer bears the burden of establishing the mistake of fact “by demonstrating the underlying facts” needed to prove the allegation. The plain language of the statute requires that the error be established by documentary evidence, if it is not manifest from the record.

In this case, unlike in C.J. Tower, Taban, and Zaki, there is no allegation that the importer of the merchandise (the protestant here), was unaware of the nature of the merchandise, just Mr. Hicks. Mr. Fiocco clearly had good knowledge of the nature of the merchandise, but made a mistake in applying that knowledge to the classification of the merchandise. A mistake in the classification of the merchandise when choosing between two subheadings, with full knowledge of the nature of the merchandise is a mistake in a conclusion of law. See e.g. Computime Inc. v. United States, supra; NEC Electronics U.S.A., Inc. v. United States, 13 CIT 214, 709 F. Supp. 1171 (1989); and B.S. Livingston & Co. v. United States, 13 CIT 889 (1989). The 1989 facsimile correspondence between Customs and the protestant, and Mr. Fiocco’s declaration, support that Mr. Fiocco was aware of Customs position and misinterpreted Customs “instructions.” Mr. Fiocco’s declaration states that he was “mislead” by the language used by Customs. Such a misunderstanding of Customs position has been found to be a misunderstanding of the law, and as such is not subject to correction under 19 U.S.C. §1520(c)(1), as it is an error in the construction of the law. Ford Motor Company v. United States, No. 98-1066, slip op. at 17-18 (Fed. Cir. September 14, 1998), citing Hambro Automotive Corp., v. United States, 603 F.2d 850 (CCPA 1979).

Customs has taken the position that it must be shown that the importing corporation did not have knowledge of the nature of the imported merchandise. In HQ 224657, dated November 29, 1993, in finding that an importer was aware of the nature of the merchandise, Customs noted the corporate correspondence with the FDA, language contained in a patent awarded to the corporation, and other corporate documents. In HQ 220042, dated April 10, 1989, it was found that an importer’s traffic manager was unaware of the specific nature of imported merchandise, but that because the information was in the documents prepared by the corporation, the manager’s lack of awareness was an inadvertence. However, because the information was forwarded by the manager to the broker for filing the entry, the manager’s inadvertence was not the cause of the error in liquidation, because the broker filed the entry, not the importer or its manager. Customs found that:

The broker has an independent obligation to determine the correct tariff classification and duty rate for entries it files for a client. No evidence is provided to refute the possibility that the broker considered all relevant facts as to the true nature of the imported merchandise and incorrectly determined the classification, which would be a mistake of law.

In this case, the protestant has not alleged or established a mistake of fact made by the broker who filed the entries. Therefore, even if Mr. Hicks was mistaken as to the nature of the merchandise based on Mr. Fiocco’s incorrect conclusion regarding the classification of the merchandise, Mr. Hicks mistake did not cause the error in liquidation, because it was the broker that filed the entries. The requirement of establishing a mistake of fact includes substantiating that the mistake caused the error in liquidation. In this case, no evidence has been provided that the broker was unaware of the nature of the merchandise or made a mistake of fact in classifying the merchandise. As in HQ 220042, supra, the broker has an independent obligation to determine the correct tariff classification and duty rate for entries it files for a client.

In Taban, and Zaki, the court found that “the ‘exact physical properties’ of the merchandise were not known to the broker or to Customs.” Taban, at 335; Zaki, at 359. The court also concluded that the “broker and Customs were unaware [of the exact physical properties of the merchandise] until more than ninety days after their liquidation and therefore plaintiff’s broker could not have relayed that information to Customs for its consideration in classifying and liquidating the merchandise at issue.” Id., Taban at 335; Zaki at 359-360. Similarly, in C.J. Tower, neither the importer nor Customs was aware that the merchandise was emergency war materials entitled to duty-free entry, until after the liquidations became final.

In this case no evidence with regard to the broker’s knowledge has been presented. Therefore there is no basis on which to find that the broker made a mistake of fact, nor is a mistake on the part of the broker alleged. Moreover, the February 29, 1996 CF 29 to the protestant’s broker giving notice of the different classification would have given the protestant and the broker notice of the error and time to protest the entries which had not been finally liquidated and which had not yet been liquidated at all. In this case, there is no allegation or evidence that at least a portion of the entries could not have been protested within 90 days of liquidation. The entries were liquidated from April 28, 1995 through April 12, 1996, and the ninety days after liquidation would have run from July 27, 1995 through July 11, 1996, which is well after the CF 29 was issued. At least 60 entries had not been finally liquidated at the time the CF 29 was issued, and of those at least 21 entries had not even liquidated after February 29, 1996. At the very least, protestant could have filed a protest under 19 U.S.C. §1514 for nearly one quarter of the entries, after receiving the February 29, 1995 CF 29.

We conclude that the protestant has not established a mistake of fact within the meaning of 19 U.S.C. §1520(c)(1) and that there are no grounds to reliquidate any of the subject entries, even if the petitions filed in September, 1996 were timely as to all of the entries and even if the alleged petition filed in April, 1996 was determined to be sufficient to state a claim under 19 U.S.C. §1520(c)(1).

HOLDING:

Relief may not be granted under 19 U.S.C. §1520(c)(1) for the reasons given in the LAW AND ANALYSIS portion of this decision. The protest is denied.

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 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 this decision available to Customs personnel, and to the public via the Customs Home Page on the World Wide Web, the Freedom of Information Act, and other public distribution channels.

Sincerely,

John Durant, Director
Commercial Rulings Division