HQ 225191: Request for Internal Advice; Pre-classification ruling; Bypass Liquidation; 19 U.S.C. 1520(c); Mistake of Fact

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 225191

                         April 18, 1994

LIQ-9-01-CO:R:C:E 225191 CB

CATEGORY:  Entry

Ms. Patricia McCauley
District Director of Customs
Portway Plaza, Suite 400
1717 East Loop
Houston, TX 52790

RE:  Request for Internal Advice; Pre-classification ruling;
     Bypass Liquidation; 19 U.S.C.  1520(c); Mistake of Fact

Dear Ms. McCauley:

     This is in reply to your request for internal advice (your
file LIQ 9-01-H:C:C2 JLD) dated January 28, 1994, wherein you
requested our advice regarding a request for reliquidation under
19 U.S.C.  1520(c)(1) to correct a liquidation on an entry summary
which was processed under "Bypass" procedures.

FACTS:

     The entry summary subject to the request was dated December
7, 1992, and covers merchandise which was the subject of a ruling
under the pre-entry classification program on March 13, 1992.  The
merchandise covered by the entry summary was not entered by the
importer in accordance with the pre-classification ruling issued
by the Field National Import Specialist.  Nor did Customs liquidate
the entry at the classification and rate of duty set forth in the
pre-classification ruling.

     The subject entry was liquidated on March 6, 1993.  On October
13, 1993, the broker filed a request for reliquidation under 19
U.S.C.  1520(c)(1) alleging a clerical error was made.  The
petitioner alleges that all entries had been made in accordance
with the pre-classification ruling except for the subject entry. 
The petitioner alleges that the entry was incorrectly classified
by its employee. 

ISSUE:

     Whether an entry liquidated under the "bypass" procedures is
subject to a 19 U.S.C.  1520(c) review?





LAW AND ANALYSIS:

     You state that it is your opinion that "bypass" liquidations
amount to intentional acts by the appropriate officers of the
Customs Service.  It is your position that these liquidations
represent acceptance of the entered classification and constitute
interpretations of the Harmonized Tariff Schedules (HTS).  Thus,
this is an error in the interpretation of the law and is excluded
from consideration under 19 U.S.C.  1520(c)(1).  

     While it is true that "bypass" liquidations are intentional
acts by Customs officers, the same holds true for all liquidations. 
The fact that there has been a legally correct liquidation does
not, in and of itself, preclude a  1520(c)(1) petition.  There
still exists the possibility of a clerical error or mistake of fact
on the part of Customs or the importer.  However, with respect to
the classification issue, you are correct in your conclusion that
a request for relief should be denied if the importer is alleging
mistake of fact by a Customs officer in processing a "bypass" entry
summary for liquidation.  Entry summaries are evaluated against a
pre-set criteria.  One of the elements in this criteria is
classification.  See C.D. 3550-26, Entry Simplification - Bypass
Procedures, issued September 8, 1987.  Once the appropriate Customs
officer has determined that an entry summary is eligible for bypass
processing and has accepted the classification asserted by the
filer as correct, a legal determination has been made which is not
subject to review under 19 U.S.C.  1520(c)(1).

     However, it must be pointed out that, in this instance, the
petitioner is alleging a clerical error on its part and not on the
part of a Customs officer.  Section 1520, Tariff Act of 1930, as
amended (19 U.S.C.  1520(c)(1)), is an exception to the 90-day
limitation on protests set forth in 19 U.S.C.  1514.  Under
 1520(c)(1), 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.  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 in 19 U.S.C.  1520(c)(1) to extend the
period for filing objections that are properly redressable under
the protest procedure.

     The burden of proof requirement imposed under  1520(c)(1) is
one that must be met by the petitioner during the  1520(c)(1)
petition and review process.  It is the affirmative burden of the
petitioner to establish, from the record or by documents submitted,
the nature of the error and to demonstrate, thereby, that the error
is in fact correctable under the statute.  Where an incorrect
classification can be explained by either a legal error or a
correctable mistake of fact or clerical error, the petitioner's
burden is to show how correctable error was responsible.  Failure
to rule out legal error by proving correctable error will result
in a denial of the petition for want of evidence.

     In the instant case, the importer is alleging that "[t]his
entry was incorrectly classified by the same employee (who made
subsequent entries under the correct HTS subheading).  The error
was simply clerical and the entries handled for this importer after
this entry, were classified correctly."  The petitioner has failed
to meet its burden of proof.  A bald assertion by the petitioner
is not sufficient to rebut the presumption that its employee made
a legal determination regarding the classification of the
merchandise subject to this entry; thus, placing the error in
classification outside the scope of a  1520(c)(1) petition. 
Indeed, the argument can be made that because the employee
classified subsequent entries under a different subheading, the
employee made a deliberate decision on how to classify the
merchandise subject to this entry.

HOLDING:

     The subject 19 U.S.C.  1520(c)(1) petition should be DENIED
in full.

     The Office of Regulations and Rulings will take steps to make
this decision available to Customs personnel via the Customs
Rulings Module in ACS and to the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels within 60 days from the date of this
decision.

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division