HQ 221682: Application for Further Review of Protest No. 1303-85- 000244; 19 U.S.C. 1520(c)(1) and 1514

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 221682

                        December 17, 1990

LIQ-9-01-CO:R:C:E 221682 PH

CATEGORY:  Liquidation

District Director of Customs
U. S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202

RE:  Application for Further Review of Protest No. 1303-85-
     000244; 19 U.S.C. 1520(c)(1) and 1514

Dear Sir:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the points raised by your
office and the protestant.  Our decision follows.

FACTS:

     This protest concerns six entries of back-to-back subway car
seats for incorporation into subway cars in the Washington, D.C.,
subway system.  The entries were dated October 18 and 28, 1983,
and January 23, February 9, March 5, and April 6, 1984.  The
merchandise was entered as free, under the Generalized System of
Preferences (GSP).  The Form A accompanying the entries listed as
35.5 percent the proportion of the merchandise as originating in
Brazil.  All of the entries were liquidated as dutiable, all
except the October 28, 1983, on June 22, 1984, and the October
28, 1983, entry on June 29, 1984.  Approximately 20 other entries
of this merchandise were liquidated as dutiable at about the same
time.  These other entries were protested within 90 days after
liquidation under 19 U.S.C. 1514 and the protests were granted.

     On November 5, 1984, the broker for the protestant requested
that the six entries under consideration be reliquidated under 19
U.S.C. 1520(c)(1).  The basis for this request was that the Form
A's submitted with the entries were claimed to have shown an
incorrect Brazilian-origin percentage.  In a February 25, 1985,
letter, the attorney of the protestant followed up the November
5, 1984, letter.  In this February letter it was stated that the
protestant had, in response to a Request for Information (Form
28) concerning certain price and freight cost information
relating to other entries of the same seats, responded with a pro
forma ex-factory price list which did not include the value of
United States origin polyvinyl chloride (PVC) and neoprene as
Brazilian for purposes of calculating GSP percentages.  On
October 6, 1983, the attorney of the protestant had written to
Customs in further regard to the Form 28, "noting that the
Brazilian exporter had mistakenly excluded the value of the [PVC]
and neoprene as Brazilian, and claiming that status for them."

     The February 25, 1985, letter is summarized (by the writer)
as contending that whether or not the failure of the importer to
include on the Form A as Brazilian the value of the PVC and
neoprene was a mistake of law, there did occur:  (1) a clerical
mistake of failure to change from 35.5 to 100 percent the amount
of Brazilian value of the back-to-back seats; and (2) a factual
mistake of Customs disregarding the representation by the
importer's counsel that the value of the PVC and neoprene were
claimed as Brazilian.

     By letter of April 12, 1985, to the broker for the
protestant, Customs confirmed that the November 5, 1984, request
for reliquidation under 19 U.S.C. 1520(c)(1) had been denied.
Customs stated in this letter that the attorney of the protestant
had been notified of the denial on or about March 5, 1985.
Customs stated in this letter that the reason for the denial of
the request for reliquidation was that "... the reason for the
incorrect percentage [shown on the Form A's] was a
misinterpretation of the law."

     On May 5, 1985, the broker of the importer protested the
denial of its petition for reliquidation under 19 U.S.C.
1520(c)(1) of the entries under consideration.  The basis for
this protest is stated to be "[t]he original Form A documents
were prepared improperly as a result of clerical error."  Copies
of the above-described documents were enclosed with the protest.
Further review of the protest was approved on August 19, 1985.

ISSUE:

     Is the failure in this case to include as Brazilian the
value of certain merchandise used in the construction of back-to-
back subway car seats in the entry documents for the subway car
seats a clerical error, mistake of fact, or other inadvertence
qualifying for relief under 19 U.S.C. 1520(c)(1)?

LAW AND ANALYSIS:

     Under section 520(c)(1), Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1):

        Notwithstanding a valid protest was not filed,
        [Customs] may, in accordance with regulations
        prescribed by the Secretary, reliquidate an entry
        to correct ... (1) a clerical error, mistake of
        fact, or other inadvertence not amounting to an
        error in the construction of a law, adverse to
        the importer and manifest from the record or
        established by documentary evidence, in any
        entry, liquidation, or other customs transaction,
        when the error, mistake, or inadvertence is
        brought to the attention to [Customs] within one
        year after the date of liquidation or exaction
        ....

     The alleged clerical error, mistake of fact, or other
inadvertence was timely brought to the attention of Customs in
this case.  Customs denial of the request to reliquidate the
entries was timely protested under section 514, Tariff Act of
1930, as amended (19 US.C. 1514).

     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 offers "limited
relief in the situations defined therein" (Phillips Petroleum
Company v. United States, 54 CCPA 7, 1, C.A.D. 893 (1966), quoted
in Godchaux-Henderson Sugar Co., Inc., v. United States, 85 Cust.
Ct. 68, 69, C.D. 4874 (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)).

     The three situations giving rise to relief under 19 U.S.C.
1520(c)(1), assuming that the other requirements therein are met,
are (1) a clerical error, (2) a mistake of fact, and (3) an
"other inadvertence", none of which may amount to an error in
the construction of a law and each of which must be adverse to
the importer and manifest from the record or established by
documentary evidence.  These terms, as used in 19 U.S.C.
1520(c)(1), have frequently been interpreted by the Courts.

     It has been stated that "[a] clerical error is a mistake
made by a clerk or other subordinate, upon whom devolves no duty
to exercise judgement, in writing or copying the figures or in
exercising his intention" (see PPG Industries, Inc., v. United
States, 7 CIT 118, 124 (1984), and cases cited therein).  It has
been held that a "mistake of fact exists where a person under-
stands the facts to be other than they are, whereas a mistake of
law exists where a person knows the facts as they really are but
has a mistaken belief as to the legal consequences of those
facts" (Hambro Automotive Corporation v. United States, 66 CCPA
113, 118, C.A.D. 1231, 603 F. 2d 850 (1979), quoted in Concen-
tric Pumps, Ltd., v. United States, supra at 508; see also, C.J.
Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17,
22, C.D. 4327, 336 F. Supp 1395 (1972), aff'd, 61 CCPA 90, C.A.D.
1129, 499 F. 2d 1277 (1974), and Universal Cooperatives, Inc. v.
United States, Vol. 23 Cust. Bull. & Dec., No. 29, July 19, 1989,
page 38, 40, CIT Slip Op. 89-89).  Inadvertence has been defined
as "an oversight or involuntary accident, or the result of
inattention or carelessness, and even as a type of mistake"
(Occidental Oil & Gas Co. v. United States, Vol. 23 Cust. Bull. &
Dec. No. 17, April 20, 1989, page 40, 42, CIT Slip Op. 89-40,
quoting C.J. Tower & Sons of Buffalo, Inc. v. United States,
supra at 22).  The Courts have held that errors in the
classification or valuation of merchandise are not clerical
errors, mistakes of fact, or other inadvertences but mistakes as
to the applicable law (see Mattel, Inc. v. United States, 72
Cust. Ct. 257, 262-263, C.D. 4547 (1974), and cases cited
therein; see also, Cavazos v. United States, 9 CIT 628 (1985),
and Occidental Oil & Gas Co. v. United States, supra).

     Under the above-described interpretations, the failure by
the protestant to include the value of the PVC and neoprene as
Brazilian in this case was clearly not a mistake of fact or other
inadvertence, but a mistake of law (i.e., the protestant knew the
facts but not the legal consequences of those facts).

     The protestant contends that, regardless of whether its
failure to include the value of the PVC and neoprene as Brazilian
was a mistake of law, the failure to change from 35.5 to 100
percent the amount of Brazilian value of the back-to-back seats
was a clerical error.  However, there is no evidence in the file
establishing, or even attempting to establish, that this
"failure" was a "mistake made by a clerk or other subordinate,
upon whom devolves no duty to exercise judgement, in writing or
copying the figures or in exercising his intention" (see
quotation from PPG Industries, Inc., v. United States, supra,
defining clerical error).  To result in reliquidation under 19
U.S.C. 1520(c)(1), a clerical error, mistake of fact, or other
inadvertence must be "manifest from the record or established by
documentary evidence."  The protestant has not satisfied this
requirement with regard to this claim of clerical error.

     The protestant also contends that Customs erred in
disregarding the representation by the protestant's counsel that
the value of the PVC and neoprene were claimed as Brazilian.  The
basis for this claim is the October 6, 1983, letter from the
attorney of the protestant to Customs.  This letter explicitly
relates to 3 specifically listed entries, not including any of
the entries under consideration.  In the letter it is stated that
"[the substantially transformed imported materials (the PVC and
neoprene)] should have been included in the entries in question."
(Emphasis added.)  There is no evidence in the file of any
attempted correction of the entries for which reliquidation is
sought until the initial request for reliquidation on November 5,
1984.  We note that the Court of International Trade has stated
that "... 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), quoting in
part from the lower court in Hambro, supra, (Hambro Automotive
Corp. v. United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220,
C.D. 4761 (1978))).  We do not believe that the protestant has
even shown error, factual or otherwise, by Customs in this
regard.  Certainly, the protestant has not shown by sufficient
evidence the nature of a clerical error, mistake of fact, or
other inadvertence in this regard.

     We believe that the Court of International Trade case of
Universal Cooperatives, Inc. v. United States, Vol. 23 Cust.
Bull. & Dec., No. 29, July 19, 1989, page 38, CIT Slip Op. 89-89,
may be helpful in the analysis of this case.  In that case the
Court distinguishes between decisional mistakes, "in which a
party may make the wrong choice between two known alternative
set[s] of facts ... [which] must be challenged under [19 U.S.C.
1514]" and ignorant mistakes, "in which a party is unaware of the
existence of the correct alternative set of facts ... [which]
must be remedied under [19 U.S.C. 1520]" (Universal Cooperatives,
Inc., supra, at page 40).  In holding that the plaintiff
protestant was not entitled to relief under 19 U.S.C. 1520, the
Court stated:

        Here ... all relevant positions as to the facts
        were known prior to the original liquidation and
        it would have been no hardship, and certainly no
        impossibility, for plaintiff to have made a
        timely protest against that liquidation.  If the
        government was mistaken as to the facts as a
        result of having chosen incorrectly from a number
        of known alternatives, then the condition
        precedent for contesting that decision in court
        was the making of a timely protest under [19
        U.S.C. 1514], thus allowing the question to be
        considered administratively in the most orderly
        and efficient way; protest made after
        liquidation.  [Universal Cooperatives, Inc.,
        supra, at page 41.]

     As was true in the above-quoted case, in this case,
according to the protestant's own submissions, all relevant
positions as to the facts were known prior to the original
liquidation.  It would have been no hardship for the protestant
to have timely filed protests against the liquidation, as was
successfully done with regard to other entries of the same
merchandise.  This case is not one of those qualifying for the
"limited relief" granted by 19 U.S.C. 1520(c)(1).

HOLDING:

     The failure in this case to include as Brazilian the value
of certain merchandise used in the construction of back-to-back
subway car seats in the entry documents for the subway car seats
is not a clerical error, mistake of fact, or other inadvertence
qualifying for relief under 19 U.S.C. 1520(c)(1).

     The protest is DENIED.

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division