HQ 227912

January 19, 1999

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

CATEGORY: Liquidation

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]{.underline} [Wolf D. Barth Company v. United
States]{.underline}, 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]{.underline} §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]{.underline}, 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]{.underline},
[supra]{.underline}, at 1387, quoting [Hambro Automotive Corp. v. United
States]{.underline}, 458 F. Supp. 1220, 1222 (Cust. Ct. 1978)
([see]{.underline} [infra]{.underline}). Under [ITT]{.underline}, 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]{.underline}, 54 CCPA 7, 11, C.A.D. 893 (1966),
quoted in [Godchaux‑Henderson Sugar Co., Inc., v. United
States]{.underline}, 85 Cust. Ct. 68, 69, C.D. 4874, 496 F. Supp. 1326
(1980); [see]{.underline} [also]{.underline}, [Computime, Inc. v. United
States]{.underline}, 9 CIT 553, 555, 622 F. Supp. 1083 (1985), and
[Concentric Pumps, Ltd. v. United States]{.underline}, 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]{.underline}, 68 Cust. Ct. 17, 21, C.D. 4327, 336 F. Supp. 1395,
1398 (1972), [aff'd]{.underline}, 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]{.underline}, [Mattel Inc. v. United States]{.underline},
377 F. Supp. 955, 72 Cust. Ct. 257, C.D. 4547 (1974); and [C.J. Tower &
Sons of Buffalo, Inc. v. United States]{.underline}, 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]{.underline}, [supra]{.underline}, 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]{.underline} [Taban Co. v. United
States]{.underline}, 960 F. Supp. 326 (CIT 1997) and [Zaki Corp. v.
United States]{.underline}, 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]{.underline}, 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]{.underline}, 4 CIT 143, 147-148
(1982), citing [Hambro Automotive Corp. v. United States]{.underline},
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]{.underline}, 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]{.underline}. 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]{.underline}. 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]{.underline}, if it is not manifest from the record.

In this case, unlike in [C.J. Tower]{.underline}, [Taban]{.underline},
and [Zaki]{.underline}, 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]{.underline} [e.g]{.underline}. [Computime Inc.
v. United States]{.underline}, [supra]{.underline}; [NEC Electronics
U.S.A., Inc. v. United States]{.underline}, 13 CIT 214, 709 F. Supp.
1171 (1989); and [B.S. Livingston & Co. v. United States]{.underline},
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]{.underline}, No. 98-1066, slip op. at 17-18 (Fed. Cir. September
14, 1998), citing [Hambro Automotive Corp., v. United
States]{.underline}, 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]{.underline}, the broker has an independent obligation to
determine the correct tariff classification and duty rate for entries it
files for a client.

In [Taban]{.underline}, and [Zaki]{.underline}, the court found that
"the 'exact physical properties' of the merchandise were not known to
the broker or to Customs." [Taban]{.underline}, at 335;
[Zaki]{.underline}, 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]{.underline}., [Taban]{.underline} at 335;
[Zaki]{.underline} at 359-360. Similarly, in [C.J. Tower]{.underline},
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