HQ 227162: Application for Further Review of Protest No. 2304-96-100158; 19 U.S.C. 1520(c)(1)

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 227162

                                August 20, 1996

LIQ-9-01-RR:IT:EC    227162 GOB

CATEGORY:   Liquidation

Port Director of Customs
Attn: Protest Section
819 Water Street
Building 6
Laredo, TX 78040

RE:  Application for Further Review of Protest No. 2304-96-100158; 19 U.S.C.    1520(c)(1)

Dear Sir or Madam:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the issues raised by your
office and by the representative of Fastenal Company
("Fastenal").  Our decision follows.

FACTS:

     Fastenal's protest is with respect to the denial of the its
petition of January 12, 1996, which requested reliquidation of
four entries pursuant to 19 U.S.C. 1520(c)(1).  The petition was
denied on March 25, 1996. 

     In its petition of January 12, 1996, Fastenal states, in
pertinent part:

     Pursuant to 19 U.S.C. Sec. 520(b)(1) [sic], we respectfully
     request reliquidation of the following referenced entry
     summaries due to an inadvertant [sic] clerical error in
     classification that has resulted in a substantial
     overpayment in Customs duties.
     ...
     In reviewing all the above referenced files it was
     determined all entries were classified under the tariff
     number MX 7318.15.8060 for Hex Cap Screws at the duty rate
     of 7.6%, when in fact there were several other types of
     screws such as [various screws with a lower rate of duty].

     In its protest, which was received by Customs on June 24,
1996, Fastenal protests Customs' denial of its 19 U.S.C. 1520
petition.  Fastenal states, in pertinent part:

     ...The issue here is one of proper classification...
     ...Our traffic operations, our customs broker, and the U.S.
     Customs Entry Specialist liquidator, although not
     misconstruing the meaning of the tariff term, all came to a
     different conclusion.  It is evident by grouping together
     all line items of assorted types of hex machine bolts, tap
     bolts, machine screws, wood screws, and nuts under HTSUS
     7318.15.8060 7.6% resulted in an overpayment of duties on
     each subsequent entry.
     ...
     It is our contention that the petition submitted under Sec.
     520 was wrongly denied by U.S. Customs Service due to having
     all supporting documentation returned by the protest clerk
     that was to have been reviewed with our original petition.

     In a footnote, Fastenal states that such documentation was
submitted on February 9, 1996 by its broker in reply to a CF 28
issued on January 19, 1996.

ISSUE:

     Was Customs' denial of the request for reliquidation under
19 U.S.C. 1520(c)(1) erroneous, such that this protest of that
decision should be approved?

LAW AND ANALYSIS:

     We note initially that the protest was timely filed under
the statutory and regulatory provisions for protests, 19 U.S.C.
1514(c)(3)(B) and 19 CFR 174.12(e)(2).  The protestant's 19
U.S.C. 1520(c)(1) petition of January 12, 1996 was denied on
March 25, 1996.  The protest was received by Customs on June 24,
1996, which is 91 days after the denial of the petition. 
However, the ninetieth day after the denial of the petition, June
23, 1996, fell on a Sunday.  Therefore, the filing of the
petition on the following day, June 24, 1996, is within the
jurisdictional period of 19 U.S.C. 1514(c)(3)(B) and 19 CFR
174.12(e)(2).

     The request for reliquidation was also timely filed.

     We also note that the refusal to reliquidate an entry under
19 U.S.C. 1520(c) is a protestable issue pursuant to 19 U.S.C.
1514(a)(7).

     Under 19 U.S.C. 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 the law.  The
statute provides that the error must be manifest from the record
or established by documentary evidence and brought to the
attention of Customs within one year from the date of
liquidation.

     Errors "manifest from the record" are those apparent to
Customs from a facial examination of the entry and entry papers
alone.  "Documentary evidence" is all other evidence supporting
the existence of the claimed error.  The importer must inform
Customs of the alleged error with sufficient particularity to
allow remedial action.  The importer must describe in detail the
alleged error and prove that the error was not the result of a
legal error rather than a factual error.  An error correctable
under 19 U.S.C. 1520(c)(1) must be established by the evidence
and cannot be inferred from the circumstances.

     In ITT Corporation v. United States, 24 F.3d 1384, 1387
(Fed. Cir. 1994), the court stated:

     With regard to substantiation,  1520(c)(1) requires the
     importer to establish the asserted inadvertence through
     documentary evidence submitted to the appropriate customs
     officer, unless the inadvertence is manifest from the
     record.  Inadvertences manifest from the record are those
     apparent to Customs from a facial examination of the entry
     and the entry papers alone, and thus require no further
     substantiation.  While clerical errors likely compose the
     majority of such inadvertences, mistakes of fact nonetheless
     also can be manifest from the record that the entry and
     entry papers constitute.  Mistakes of fact that are not
     manifest from such record, however, must be established by
     documentary evidence. 

     In PPG Industries, Inc. v. United States, 4 CIT 143, 147-148
(1982) the court stated (quoting in part from Hambro Automotive
Corp. v. United States, 81 Cust. Ct. 29, 31 (1978)):

     ...[I]t is incumbent on the plaintiff to show by sufficient
     evidence the nature of the mistake of fact.  The burden and
     duty is upon the plaintiff to inform the appropriate Customs
     official of the alleged mistake with "sufficient
     particularity to allow remedial action."

     In United States v. Enrique C. Lineiro, 37 CCPA 5, 10
(1949), the court stated that "[d]etermination of issues in
customs litigation may not be based on supposition." 

           Fastenal has not set forth a valid claim for relief
under 19 U.S.C. 1520(c)(1).  A clerical error, mistake of fact,
or other inadvertence (Fastenal alleged "an inadvertant [sic]
clerical error in classification" in its 19 U.S.C. 1520 petition)
is not manifest from the record, nor has such an occurrence been
established by documentary evidence.  

           Fastenal asserts a misclassification as the basis for
relief.  

     Generally, a misclassification is legal error, or a mistake
of law, and is not a mistake of fact.  Therefore, a
misclassification is not correctable under 19 U.S.C. 1520(c)(1). 
However, relief may be granted under 19 U.S.C. 1520(c)(1) when it
is established by sufficient evidence that merchandise has been
wrongly classified due to a mistake of fact.  (See PPG
Industries, Inc., supra, 4 CIT at 147-148; see also Fabrene, Inc.
v. United States, CIT Slip. Op. 93-164, Vol. 27, Customs
Bulletin, No. 36, p. 9,11 (1993) , "A mistake sufficient to
invoke the relief provided for by  1520(c)(1), is one which
 goes to the nature of the merchandise and is the underlying
cause for its incorrect classification.'  See Boast, Inc. v.
United States, [17 CIT 114 (1993)])"   

     In Boast, supra, the court stated:

     Thus, like the plaintiff in Fibrous Glass [63 Cust. Ct. 62,
     C.D. 3874 (1969)], plaintiff in this action is attempting to
     correct an error of judgement on the part of Customs in
     classifying the merchandise, which is a mistake in the
     applicable law, not correctable under 19 U.S.C. 
     1520(c)(1)...The alleged misclassification of the subject
     merchandise was not the result of a mistake of fact or other
     inadvertence correctable under 19 U.S.C.  1520(c)(1), but a
     mistake in the construction of law remediable only by filing
     a timely protest under 19 U.S.C.  1514.
     
     Similarly, in Mattel, Inc. v. United States, 72 Cust. Ct.
257, 262, C.D. 4547 (1974), the court held that a determination
with respect to the classification of merchandise is a conclusion
of law, not a conclusion of fact.  The court stated:

     ...a determination by customs officers as to the
     classification of merchandise is a conclusion of law. 
     United States v. Imperial Wall Paper Co., 14 Ct. Cust.
     Appls. 280, 282, T.D. 41886 (1926).  Therefore an erroneous
     classification of merchandise by the district director under
     the tariff statute is not a "clerical error, mistake of
     fact, or other inadvertence not amounting to an error in the
     construction of a law" within the meaning of section 520(c),
     but a mistake as to the applicable law which could only be
     remedied by filing a protest under section 514 within 60
     [now 90] days after liquidation.  Fibrous Glass Products,
     Inc. v. United States, 63 Cust. Ct. 62, C.D. 3874 (1969),
     appeal dismissed, 57 CCPA 141 (1970); United China & Glass
     Co. v. United States, 66 Cust. Ct. 207, 211, C.D. 4191
     (1971).

     Under the foregoing cases, a mistake in the tariff
classification of merchandise may only be corrected under 19
U.S.C. 1520(c)(1) if the mistake goes to the factual nature of
the goods (e.g., if the importer thought the goods were watches
with a mechanical display when they were actually watches with an
opto-electric display) and if that mistake is satisfactorily
established (i.e., not only the mistake, but also that the
mistake was factual in nature, must be established).  For an
example of such an interpretation of 19 U.S.C. 1520(c)(1), see HQ
Ruling 225399 dated March 8, 1994.  In that ruling, note the
discussion of the effect on relief under 19 U.S.C. 1520(c)(1) of
"carelessness" by a broker in classifying merchandise when the
broker had a clear and correct invoice description of the
merchandise, under B.S. Livingston & Co. v. United States, 13 CIT
889 (1989).

     There was no such evidence submitted with the June 12, 1996
request for reliquidation.  There was merely a statement that
"all entries were classified under the tariff number MX
7318.15.8060 for Hex Cap Screws at the duty rate of 7.6%, when in
fact there were several other types of screws..."  This clearly
does not meet the statutory requirement for establishment of the
error by documentary evidence (in the absence of the error being
manifest from the record).  Nor does the protest meet this
requirement.  There is no evidence of the alleged error.  Mere
assertions are not considered to be documentary evidence.  In
this regard, we note the statement of the court in Bar Bea Truck
Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983):  

     Again, plaintiff has presented no affidavit or other
     evidence in support of its counsel's bald assertion...

     Fastenal also makes an assertion in its protest with respect
to certain documentation which was submitted to the Customs'
protest clerk and which was then incorrectly returned to the
broker by the protest clerk rather than being included in the
protest packet.

     With respect to this assertion, we note that Fastenal has
not established by documentary evidence, nor is it manifest from
the record: (a) that the above-described factual situation
actually occurred; and (b) that if in fact the above-described
factual situation did occur, it occurred as a result of a
clerical error, mistake of fact, or other inadvertence within the
meaning of 19 U.S.C. 1520(c)(1).  We note that the record
reflects no error or mistake on the part of Customs.  The record
reflects that the Customs official returned to the broker
documents which were not responsive to the Customs official's
request.  These documents, which are a part of our file, do not
meet the above-described requirement for documentary evidence
establishing the error, and do not establish that the error, an
alleged mistake in the tariff classification, was a factual
mistake with respect to the nature of the goods.  

     Thus, based on all of the above, we find that Fastenal has
not meet its burden under 19 U.S.C. 1520(c)(1).



HOLDING:

     The protest should be denied.  Customs' denial of the
request for reliquidation pursuant to 19 U.S.C. 1520(c)(1) was
not erroneous.

     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 the decision
available to Customs 
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, the Freedom of Information
Act and other public access channels.


                              Sincerely,



                              Director,
                              International Trade Compliance
Division