HQ 226536: Application for further review of Protest No. 2304-95-100120; 19 U.S.C. 1520(c)(1); mistake of fact; classification of Persian limes; legalconstruction; C.J. Tower & Sons of Buffalo, Inc. v. United States; Bar Bea Truck LeasingCo., Inc. v. United States; PPG Industries, Inc. v. United States; T.D. 54848; HQ Rulings220042, 222853, 223524

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 226536

                          April 18, 1996

LIQ-9-01-RR:IT:EC 226536 GEV

CATEGORY: Liquidation

Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044

RE:  Application for further review of Protest No. 2304-95-100120; 19 U.S.C. 1520(c)(1);
        mistake of fact; classification of Persian limes; legal
construction; C.J. Tower & Sons of
        Buffalo, Inc. v. United States; Bar Bea Truck Leasing
Co., Inc. v. United States; PPG
        Industries, Inc. v. United States; T.D. 54848; HQ Rulings
220042, 222853, 223524

Dear Sir or Madame:

     This is in response to your memorandum dated October 27,
1995, forwarding the above-referenced protest to this office for
further review.  We have considered the facts and issues raised,
and our decision follows.

FACTS:

     This protest has been filed against your denial of a request
for reliquidation of the subject entries pursuant to 19 U.S.C.
1520(c)(1).

     The protestant filed nineteen entries from August 27 -
December 17, 1993, covering imported fresh Persian limes from
Mexico.  The subject limes were classified under subheading
0805.30.4000 of the Harmonized Tariff Schedule of the United
States (HTSUS), which provided for "Citrus fruit, fresh or dried:
Lemons (Citrus limon, Citrus limonum) and limes (Citrus
aurantifolia): Limes," which were dutiable at 2.2 cents per
kilogram in 1993.  Pursuant to Customs Directive No. 3550-39,
dated January 16, 1991, you have forwarded copies of
representative entry documentation covering the entries in
question (i.e., an Entry Summary (CF 7501), an invoice from a
Mexican vendor, a Texas Cooperative Inspection Program shipment
release no. 023657, and a Federal-State Inspection Certificate
issued by the U.S. Department of Agriculture).  The
aforementioned entry documentation specifically identifies the
limes as "LIMON PERSA...CITRUS LATIFOLIA" (Persian limes...citrus
latifolia), or "Mexico Persian 
seedless limes," or simply "limes: fresh or dried."   Subheading
0805.90.00 provided for 

                              - 2 -

"Citrus fruit, fresh or dried: Other [than Lemons (Citrus limon,
Citrus limonum) and limes (Citrus aurantifolia)], including
kumquats, citrons and bergamots," dutiable at 0.9% in 1993.     

     These entries were liquidated as entered from December 3,
1993, through March 25, 1994.  On June 30, 1994, Administrative
Message 94-0661 was posted to the OTO5 Bulletin Board, listing
modifications to the 1994 HTSUS-Supplement 2.  The message gave
notice of statistical breakout changes to subheading 0805.90.00. 
As a result of this notice, it was determined that the proper
classification for Persian limes is subheading 0805.90.0010,
HTSUS, which provides for "Citrus fruit, fresh or dried: Other,
including kumquats, citrons and bergamots...Tahitian, Persian
limes and other  limes of the citrus latifolia variety."
(Emphasis added)  This tariff classification is duty-free from
Mexico.  According to the National Import Specialist (NIS),
Persian limes, which are seedless, are of the citrus latifolia
variety and the limes of subheading 0805.30.4000 HTSUS, citrus
aurantifolia, are seeded limes.  According to the port, the
subject limes would have been more appropriately classified under
subheading 0805.90.00 HTSUS, as "other."  The NIS is in agreement
with classification under subheading 0805.90.00 HTSUS.

     On December 5, 1994, Customs received a request from the
protestant for the reliqui- dation of the subject entries of
fresh Persian limes under subheading 0805.90.0010 of the HTSUS. 
The letter states that the limes had been "mistakenly classified
as fresh limes (Citrus aurantifolia)."  The request for
reliquidation, which was received by Customs more than 90 days
after the date of liquidation, was treated as a request for
reliquidation under 19 U.S.C. 1520(c)(1).  However, because the
petition for reliquidation did not meet the criteria of 19 U.S.C.
1520(c)(1) requiring a clerical error, mistake of fact or other
inadvertence, the request was denied on April 7, 1995.

     The protest at issue was filed on July 6, 1995.  It
provides, in pertinent part, as follows:

     The importer, the customs broker, and the Import Specialist
at all times (i.e.,  
     at the time of each entry, at the time of each liquidation,
and for the period of 
     90 days following the date of each liquidation) mistakenly
believed, and acted 
     upon their mistaken belief, that the instant Mexican Persian
limes were of one 
     variety (i.e., Citrus aurantifolia), when, in fact, they
were of another variety 
     (i.e., Citrus latifolia).

     As a result of this mistake of fact, repeated thousands of
times over a period
     of over 5 years by this importer, the entire Mexican lime
import industry, 
     multiple customs brokers, and multiple Laredo district
Customs Import
     Specialists, these limes were misclassified upon entry by
the Customs broker
     (who did not know and the documents did not reflect that
these Persian limes
     were citrus latifolia, rather than citrus aurantifolia), and
were misclassified
     upon liquidation by the import specialist (who did not know
and the documents
     did not reflect that these Persian limes were citrus
latifolia, rather than citrus
     aurantifolia).  (See p. 10 of the CF 19 continuation
sheets.) 

                              - 3 -

     In support of its protest, the protestant cites to C.J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17,
C.D. 4327, 366 F.Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D.
1129, 499 F.2d 1277 (1974), T.D. 54848, and Headquarters Rulings
220042, 222853 and 223524.  In addition, pursuant to a meeting at
Customs Headquarters on February 15, 1996, between counsel for
the protestant, the Chief, Entry and Carrier Rulings Branch, and
the staff attorney handling the case, counsel was given
permission to submit additional documentation in support of the
protestant's claims.  This additional documentation, in the form
of twenty-three affidavits from various Customs brokers,
importers and growers of the subject limes said to be involved in
this protest as well as other protests involving the same issue,
was subsequently forwarded by a letter from counsel dated March
21, 1996.

ISSUE:

     Whether relief may be granted under 19 U.S.C. 1520(c)(1) to
correct an alleged mistake of fact in the classification of
merchandise?

LAW AND ANALYSIS:

     Initially we note that this protest was timely filed
pursuant to 19 U.S.C. 1514(c)(2)(B).  The date of the decision
protested was April 7, 1995, and the protest was filed on July 6,
1995.  In addition, the refusal to reliquidate an entry under 
1520(c)(1) is a protestable matter pursuant to 19 U.S.C.
1514(a)(7).

     Title 19, United States Code,  1514 (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.

     Title 19, United States Code,  1520(c)(1) (19 U.S.C.
1520(c)(1)) is an exception to the finality of  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 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;  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 Godchaux-Henderson 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)).



                              - 4 -

     Essentially the protestant's claim is that out of two
competing HTSUS provisions, the subject limes were classified
under the wrong provision.  The protestant claims this
misclassification arose out of a "mistake of fact" citing T.D.
54848 which states that a "[m]istake of fact occurs when a person
believes the facts to be other than they really are and takes
action based on that erroneous belief.  The reasons for the
belief may be that a fact exists but is unknown to the person or
he may be convinced that something is a fact when in reality it
is not."  94 Treas. Dec. 244, 245 (May 6, 1959)   Consequently,
the protestant believes the alleged mistake of fact is
correctable under 19 U.S.C. 1520(c)(1).  In this regard, it is
contended that the requisite criteria for relief pursuant thereto
have been met (i.e., the error is adverse to the importer since
entry and the resultant liquidation were at a too-high rate; it
is manifest from the entry documentation; and it was brought to
the attention of Customs within one year after the date of
liquidation). 

     With respect to the protestant's claim, it should be noted
that 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 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).  Here, the only error
established by the protestant is one involving the classification
of limes, which could only have been corrected by the filing of a
19 U.S.C. 1514 protest within 90 days of the original
liquidation.  In support of its protest, the protestant cites to
C.J. Tower & Sons of Buffalo, Inc.   In Tower, neither the
District Director of Customs nor the importer were aware of the
nature of the imported merchandise, which would have entitled it
to duty-free treatment, until after the liquidation became final. 
The court held that such a lack of knowledge did not amount to an
error in the construction of the law but came within the
statutory language "mistake of fact or other inadvertence." 
Degussa Canada Ltd. v. United States, 889 F.Supp. 1543 (CIT, June
13, 1995) citing C.J. Tower & Sons, 68 Cust.Ct. at 22, 336
F.Supp. at 1399.  We find the court's decision in Tower 
inapplicable in this case because the entry documentation
submitted with the protest  not only indicates that the
protestant was aware of the specific variety of limes being
purchased (i.e., Persian limes without seeds), the invoice from
the Mexican vendor specifically reflects the correct Latin
taxonomic description of the subject limes (i.e., "citrus
latifolia").

     With respect to the three Headquarters Rulings cited in the
protest, we find them to support Customs position in this matter,
rather than that of the protestant.  

     In HQ Ruling 220042, the issue under consideration was the
misclassification of boots.   The importer in that case claimed
that its agent did not know all the facts necessary to make a
correct classification.  It was subsequently found that the agent
had access to the information through entry documents that he
filed with Customs.  Thus, since both the agent and the Customs 
officer had all documentation necessary to correctly classify the
subject merchandise, it was held that their collective errors in
judgement did not constitute a mistake of fact but rather a
mistake in the construction of law not correctable under 19
U.S.C. 1520(c)(1).  In distinguishing this ruling from the
subject protest, the protestant states, "In the instant case, the
customs broker had no 

                              - 5 -

document or other evidence indicating that these limes were
citrus latifolia, rather than citrus aurantifolia; hence, the
customs broker did not have all of the documentation necessary to
file a correct entry."  (See protest at p. 5)  The protestant
further states, "None of the entry documents included any
description other than  Persian limes'...There was no statement
in the accompanying documentation as to whether the limes were of
the latifolia or aurantifolia variety."  (Id.)  We disagree.  The
Federal-State Inspection Certificate issued by the U.S.
Department of Agriculture and the Texas Cooperative Inspection
Program shipment release no. 023657 described the subject limes
as "Mexico Persian seedless".  The invoice from the Mexican
vendor described the limes as  "LIMON PERSA...CITRUS LATIFOLIA"
(i.e., Persian limes...citrus latifolia).  Consequently, the
entry documents do in fact constitute evidence that the limes in
question were of the latifolia variety.  The error in question
was therefore not manifest from the record as is required for
reliquidation under 19 U.S.C. 1520(c)(1).  Consequently, the
holding in HQ Ruling 220042, rather than being distinguishable
from the subject protest, is directly on point.

     In HQ Ruling 222853, two "Rotadisc" driers were classified
by the importer's customs broker under a non-agricultural
provision because the broker was not aware that the driers were
principally used in agricultural operations.  The ruling held
that the failure of the broker to properly determine the
principal use of the merchandise was not a mistake of fact
correctable under 19 U.S.C. 1520(c)(1) in view of the fact that
the packing list submitted with the entry summary clearly stated
that the merchandise was a grain drying system.  The error
therefore was not manifest from the record.  It was determined
that the customs broker made the wrong choice between two
alternative classifications.  Decisional mistakes are not
correctable under 19 U.S.C. 1520(c)(1).  Universal Cooperatives
v. United States, 13 CIT 516, 518, 715 F.Supp. 1113, 1114 (1989). 
 Consequently, the holding in HQ Ruling 222853, like that of HQ
Ruling 220042 discussed above, is directly on point with, rather
than be distinguishable from, the subject protest.  

     In contrasting the facts of HQ Ruling 222853 with those
under consideration in the subject protest, counsel for the
protestant states that, "Customs, in mid-1994, admitted that it
had been unaware of the material fact at the time of liquidation. 
That is, Customs admitted that the limes were of the latifolia
variety, whereas theretofore (at the time of each of the
thousands of liquidations) they had mistakenly believed that they
were of the aurantifolia variety."  (See protest at p. 6)  If the
"admission" to which counsel is referring is Customs
Administrative Message No. 94-0661, dated June 30, 1994, it
should be noted that this message only advises of statistical
changes in the HTSUS, providing for a further breakout of 
subheading 0805.90.  Statistical annotations are not included in
the legal text of HTSUS.  HTSUS, General Statistical Note 2;
Tariff Act of 1930 as amended by  1204(a) of the Omnibus Trade
and Competitiveness Act of 1988, Pub.L. 100-418, 102 Stat. 1107,
1148 (1988).  Therefore, the statistical annotations have no
legal status.  Unlike the legal text of the HTSUS, the
statistical annotations are established by the Secretary of the
Treasury, the Secretary of Commerce, and the United States
International Trade Commission, pursuant to 19 U.S.C. 1484(f). 
The 



                              - 6 -

Administrative Message and statistical annotation have no bearing
on the classification of the subject limes, as they did not
change the applicable HTSUS provisions.  Therefore, this mistake
of fact claim is not supported.  If, on the other hand, the
"admission" to which counsel is referring is Customs granting of
protests filed pursuant to 19 U.S.C. 1514, we reiterate that that
is the proper avenue for relief in this matter, not a request
pursuant to 19 U.S.C. 1520(c)(1).
   
     In HQ Ruling 223524, three factual scenarios were
considered, each of which concerned the misclassification of
merchandise.   Customs held that only one was supported by
evidence sufficient to grant reliquidation based on a mistake of
fact.  In this scenario the evidence in question consisted of
invoices with misleading words (i.e., the words "CHIEF VALUE
WOOL" appeared on the invoices when in fact the merchandise was
in chief value of silk).  The holding of the ruling specifically
states, in pertinent part, "On the facts here, where the record
shows that the invoice contained an erroneous description of the
merchandise, and where the record indicates that such
misdescription reasonably caused the broker and Customs to
misunderstand that nature of the merchandise, there is sufficient
evidence upon which to base a finding of mistake of fact." 
(Emphasis added, HQ Ruling 223524 at p. 6)  It goes on to state,
"Where the invoice is not materially misleading, and there is
lacking sufficient other evidence that a mistake of fact - as
opposed to an error of law - is responsible for an erroneous
classification, mistake of fact will not be found because of this
failure of evidence." (Emphasis added, Id.)

     Notwithstanding counsel's claims to the contrary, the above-described factual scenario of HQ Ruling 223524 in which
reliquidation was granted pursuant to 19 U.S.C. 1520(c)(1) is
distinguishable from the facts of the subject protest.  At the
outset, we note counsel's admission that, "...in the instant
case, the invoices contained no misleading information."  (See
protest at p. 7)  Counsel, however, then goes on to state that
with respect to the invoices covering the subject limes,
"...neither did they contain sufficient information to dispel the
mistaken understanding on the part of the customs broker in
preparing the entry and the import specialist in liquidation, to
wit: that the limes were not of the aurantifolia variety, as they
believed, but of the latifolia variety." Id.  As discussed above,
the entry documentation indicates to all parties concerned that
the limes covered thereby are Persian seedless limes of the
latifolia variety covered by subheading 0805.90.0010, HTSUS. 
Consequently, the aforementioned documentation did contain
sufficient information from which to make a correct
classification.         

     Other than an error in the classification of the limes
between the two competing HTSUS provisions, the protestant has
failed to bring to Customs attention any "mistake of fact,
clerical error or other inadvertence" correctable under 19 U.S.C.
1520(c)(1).  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) 

                              - 7 -

aff'd, 66 CCPA 113, C.A.D. 1231, 603 F.2d 850 (1979).  In this
regard we note that the twenty-three affidavits submitted by
counsel from various Customs brokers, importers and growers of
the subject limes are merely statements devoid of evidentiary
support with respect to the claim that the error in question was
based on a mistake of fact.  They merely corroborate that which
has already been established, i.e., that the subject limes were
misclassified.  In this regard we note that it is a well known
legal axiom that testimony or other evidence consisting solely of
conclusional statements must be supported by evidentiary facts. 
(See Andy Mohan v. United States, C.D. 4593, citing Brooks Paper
Co. v. United States, 40 CCPA 38, C.A.D. 495 (1952)).  

     Further in regard to the aforementioned affidavits, some are
almost illegible and all of them appear to form statements
containing substantially identical text.  None of the affidavits
in the text preceding the affiants' signatures identify the
protest or entries to which they are presumably connected.  While
some of the affidavits contain hand written annotations as to
some of the protests filed regarding this same issue, it is
unclear whether the affiant made the annotation.  Two affidavits
were received from an affiant named Yuri Shiba reciting the same
address and telephone number but identifying a different importer
number.

     One affidavit dated August 7, 1995, and signed by one Jim
Steele appears to be related to the subject protest since it
contains the hand written annotations "Protest 2304-95-100120",
and "Frontera".  The affiant states:

          "For several years prior to mid-1994, I mistakenly
understood that
          these Mexican grown Persian limes that I have imported
were of 
          the Citrus Aurantifolia variety.  I do not recall the
source of my
          impression but it was the term commonly used throughout
the
          U.S./Mexico lime trade; i.e., by growers, shippers,
customs 
          brokers, and importers."

     The file contains entry no. AQ2 0001378-9 of September 3,
1993, which is said to be representative of the entries covered
by the protest.  As discussed above, the entry documentation
includes a Texas Cooperative Inspection Program shipment release
no. 023657 dated August 20, 1993, which identifies the imported
merchandise as "Mexico Persian seedless limes".  The invoice
issued to Frontera Produce, Inc. by the Mexican exporter
describes the goods as follows: 

          "CAJAS CON LIMON PERSA.  FRESH LIMES. CITRUS LATIFOLIA"

     Thus, the affiant's statement made nearly two years after
the protested entry, but prior to mid-1994, that the affiant had
a belief that the limes it was purchasing were of the citrus
aurantifolia variety rather than the citrus latifolia variety is
not persuasive in view of the documentary evidence in the
protested entry.  While each affiant, including that cited above,
stated that each was unaware of the source of their belief that
the limes were of the citrus aurantifolia variety, that belief
would be possible only if the affiants failed to read the entry
invoices which correctly described the variety of limes imported.

                              - 8 -

     It is insufficient for the protestant to notify Customs that
the classification was wrong.  This does not identify and explain
the correctable error.  It fails to demonstrate that the error
was other than a mistake in legal conclusion.  See Headquarters
Ruling 223625, dated May 4, 1992.  In this case, the protestant
has failed to set forth any correctable error, and no error is
manifest from the record.  The classification error was an error
in the construction of a law which, pursuant to T.D. 54848
"occurs when a person knows the true facts of a case but has a
mistaken belief of the legal consequences of those facts and acts
on that mistaken belief."  The error in the construction of law
in this and another other such cases can only be remedied by the
filing of a protest within 90 days of liquidation pursuant to 19
U.S.C. 1514.

HOLDING:

      An error in the classification of merchandise is
correctable by the filing of a 19 U.S.C. 1514 protest within 90
days of liquidation; relief is not available under 19 U.S.C.
1520(c)(1).

     Accordingly, the protest is denied.

     In accordance with  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 no later
than 60 days from the date of this letter.  Any reliquidation of
the entry in accordance with this
decision must be accomplished prior to mailing 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
Ruling 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