HQ 222989: Application for Further Review of Protest No. 2704-90- 001021; Sufficiency of Evidence; 19 U.S.C. 1520(c)(1) Dear Sir:

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 222989

                          May 24, 1991

LIQ-9-01-CO:R:C:E 222989 PH

CATEGORY:  Liquidation

Regional Commissioner of Customs
Pacific Region

RE:  Application for Further Review of Protest No. 2704-90-
     001021; Sufficiency of Evidence; 19 U.S.C. 1520(c)(1)
 
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 (original
documents in the file are returned with this ruling).

FACTS:

     According to the file, on August 1, 1988, the protestant
imported a quantity of various kinds of footwear, including the
footwear which is the subject of this protest.  The footwear
under consideration, stated to be 2,083 cartons of 27,828 pairs
of vinyl footwear for women (identified as style 2287) and 1,787
cartons of 20,196 pairs of athletic footwear (with uppers of 90
percent rubber or plastic) for youths and children (identified as
style 9140) were entered under items 700.56, Tariff Schedules of
the United States (TSUS), dutiable at the rate of 6 percent ad
valorem, with duty in the amount of $16,958.28.  A Customs Form
(CF) 5523 (Invoice Details for Footwear) was provided for the
youths' and children's footwear.  In the CF5523 it was stated
that the percentage of exterior surface area of the upper was 85
percent plastic, 5 percent rubber, and 10 percent fiber. 
According to the file, no CF5523 was provided for the women's
footwear and a bond was posted for submission of that form for
these shoes.

     The entry date for the merchandise under consideration was
August 1, 1988.  By a Notice of Advance, dated March 13, 1989,
the classification of the footwear was advanced from the item
under which it was entered to items 700.59 and 700.61, TSUS,
dutiable at the rate of 37.5 percent ad valorem.  The
explanations given for the rate advance were:  "1. (Bond was
posted for CF5523(1)) & it has not been received)[; and] 2.
009140 - Per CF5523 90% ESAU, 10% fiber."  The entry was
liquidated accordingly on July 14, 1989.

     On November 2, 1989, the protestant filed a request that the
entry be reliquidated under 19 U.S.C. 1520(c) because "[t]he
untimely notice of [advance] ... made it impossible to receive
corrected CF5523's."  With regard to the youths' and children's
footwear, the protestant enclosed a copy of an interim footwear
invoice and a laboratory analysis, dated September 22, 1989, of a
sample of this style footwear.  The laboratory analysis stated
that the percentage (of material by area of the external surface
area of the upper) was 96 percent rubber and/or plastic and that
the sample did not have any foxing or foxing-like band, that the
overlapping of rubber around the forepart is 36 percent of the
total perimeter of the shoe, and that the sample is a black
sneaker with a plastic upper and a rubber sole.  With regard to
the women's footwear, the protestant enclosed a copy of an inter-
im footwear invoice and stated that the merchandise was an all
plastic shoe, with an invoice description of "ladies P.U. shoe."

     The protestant's request for reliquidation was denied on
December 13, 1989, on the basis that the claim was not
correctable under 19 U.S.C. 1520(c)(1).  On March 12, 1990, the
protestant filed the protest under consideration and applied for
further review.  The basis for the protest was that the CF5523
relied upon by Customs in its rate advance was claimed to have
been prepared in error by the manufacturer.  The protestant
claimed to have been unable to obtain a corrected CF5523 from the
manufacturer due to the time (nearly 7 months) that had elapsed
between the date of importation and the rate advance.  The pro-
testant stated that it did provide Customs with interim footwear
invoices.  With regard to the factual question of whether the
shoes had external surface areas of more than 90 percent rubber
or plastic, the protestant cited the laboratory test for the
youths' and children's athletic footwear and the alleged fact
that the women's footwear is an all-plastic shoe.  The protestant
offered to supply a sample of both styles of footwear.  The
protestant contended that the liquidation in this case is
correctable under 19 U.S.C. 1520(c)(1) "because [it was] based on
either clerical errors of the manufacturer or an incorrect
factual representation with regard to the actual features of the
shoes (i.e., an incorrect belief that the external surface area
of the uppers was not more than 90% rubber or plastic)."

     The protest was forwarded to Headquarters, through the
Customs Information Exchange (C.I.E.).  In the course of its
review of the protest, the C.I.E. requested further information
on this case from the protestant.  In response to questions as to
how the alleged clerical error occurred in this case, the
protestant provided an affidavit, dated December 11, 1990, of Mr.
Scott C. Larson, Director of Transportation, International and
Planning, for the protestant.  The affiant stated that the "shoe
form" accompanying the importations of the youths' and children's
footwear was prepared incorrectly by the factory in that the
information on the form related to another style of footwear. 
The affiant stated that usually shoe forms are reviewed by the
protestant's Customs broker before submission to Customs but in
this instance "the broker apparently did not realize the
factory's error."  The affiant stated that the samples provided
to Customs and the laboratory were not samples from the shipment
in question because, according to the affiant, no samples were
left in inventory.  Samples of the identical shoe style were
requisitioned from the protestant's distribution center for the
laboratory analysis.

     The protestant provided the C.I.E. with copies of documents
from the laboratory which explained the analysis of the youths'
and children's footwear under consideration.  Also provided by
the protestant were copies of two approved protests (under 19
U.S.C. 1514(c); relief was not sought under 19 U.S.C. 1520(c)(1)
in these other protests), with related invoices, for footwear
alleged to be of the same style as the youths' and children's
footwear under consideration in this protest.

ISSUE:

     Was there sufficient evidence in this case to grant the
petition filed under 19 U.S.C. 1520(c)(1), the denial of which is
the subject of this protest?

LAW AND ANALYSIS:

     Initially, we note that both the request for reliquidation
under 19 U.S.C. 1520(c)(1) and the protest of the denial of that
request, under 19 U.S.C. 1514(a), were timely filed.

     Under section 520(c)(1), Tariff Act of 1930, as amended (19
U.S.C. 1520(c)(1)), Customs may reliquidate an entry to correct a
clerical error (see PPG Industries, Inc., v. United States, 7 CIT
118, 124 (1984), and cases cited therein), mistake of fact
(Hambro Automotive Corporation v. United States, 66 CCPA 113,
118, C.A.D. 1231, 603 F. 2d 850 (1979)), or other inadvertence
(see 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), not amounting to an error in the construction of a law
(see Mattel, Inc. v. United States, 72 Cust. Ct. 257, 262-263,
C.D. 4547 (1974), and cases cited therein) when certain
conditions are met.

     The conditions required to be met under 19 U.S.C. 1520(c)(1)
are that the clerical error, mistake of fact, or other inadver-
tence must be adverse to the importer, manifest from the record
or established by documentary evidence, and brought to the
attention of Customs within one year after the date of liquida-
tion of the entry.  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, 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 (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)).

     Customs has ruled that "negligent inaction" (see Customs
Service Decision (C.S.D.) 80-250; see also, 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) is not within the
scope of 19 U.S.C. 1520(c).  Cases involving the submission of
incorrect or incomplete documentation and the failure to submit,
or late submission, of "correct" documentation have been held to
constitute negligent inaction (see, e.g., rulings 221590, dated
October 30, 1989, and 221680, dated October 16, 1989).

     Basically, the clerical error, mistake of fact, or other
inadvertence upon which the request for relief under 19 U.S.C.
1520(c) was based in this case, with regard to the women's
footwear, was that no CF5523 could be supplied to Customs because
of the time that had elapsed between the date of importation and
the Notice of Advance.  According to the file, however, the
protestant posted a bond for submission of the CF5523 for these
shoes.  Under such a bond, the protestant had 120 days after the
filing of the entry summary to provide the CF5523 (see 19 CFR
141.91(d)).  This is a classic case of negligent inaction.  As
the Court stated in Occidental Oil & Gas Co. v. United States
(see above, Vol. 23 Cust. Bull. & Dec. No. 17, April 20, 1989, at
page 45):

        The record shows that plaintiff had not supplied
        the appropriate documents to support its claim. 
        Hence, the Customs officer made a legal
        determination as to the classification of the
        merchandise on the basis of the facts presented.

The protest is DENIED with regard to the women's footwear.

     With regard to the youths' and children's footwear, the
gravamen of the protestant's request for relief under 19 U.S.C.
1520(c) was that the CF5523 for these shoes was incorrect (in
that it stated that 90 percent, instead of 96 percent, of the
exterior surface area of the upper was plastic and rubber), that
the CF5523 was incorrectly completed by the manufacturer in that
the information provided was for another shoe not contained in
the entry under consideration, that the protestant's Customs
broker, who usually reviews the CF5523's before submission to
Customs, failed to realize the manufacturer's error, and that
because of the time that had elapsed between the date of
importation and the Notice of Advance, no corrected CF5523 could
be obtained.

     As stated above, in order to qualify for relief under 19
U.S.C. 1520(c)(1), the clerical error, mistake of fact, or other
inadvertence must be manifest from the record or established by
documentary evidence.  According to the Court in PPG Industries,
Inc. v. United States, 4 CIT 143 (1982), quoting, in part, from
the lower court in Hambro, id, (Hambro Automotive Corp. v. United
States, 81 Cust. Ct. 29, 31, C.D. 4761, 458 F. Supp. 1220
(1978)):

        ... it 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."  [4 CIT at 147-148; see
        also, United States v. Lineiro, 37 CCPA 5, 10,
        C.A.D. 410 (1949), in which the Court stated
        "[d]etermination of issues in customs litigation
        may not be based on supposition."]

     In this case, with regard to the youths' and children's
footwear, it is not manifest from the record or established by
documentary evidence that the CF5523 provided with these shoes on
entry was incorrect (i.e., the laboratory analysis submitted by
the protestant was not of shoes in this shipment).  The evi-
dence as to the alleged incorrect completion of the CF5523 (i.e.,
that some unknown person in the factory used specifications for
some other unidentified shoe in completing the CF5523) is not of
sufficient particularity and there is no showing as to why the
person providing the evidence would have knowledge of the alleged
error (i.e., the affiant is an employee of the protestant, not of
the manufacturer in the factory of which the error was allegedly
made).  The same is true of the alleged failure of the protes-
tant's Customs broker to realize the manufacturer's alleged error
(with regard to the kind of evidence which could have been
submitted, see C.S.D. 89-87) (these evidentiary deficiencies are
also found with regard to the women's footwear).  To paraphrase
the statement of the Court in United States v. Lineiro, quoted
above, "determination of [these] issues ... may not be based on
supposition."  The protest is DENIED with regard to the youths'
and children's footwear.

     This is not to say that relief could not have been obtained
in this case.  If a protest of the liquidation of the footwear
had been timely filed under 19 U.S.C. 1514, it may be that the
protest would have been approved, as was the case in the two
other protests cited by the protestant.  However, as stated
above, the relief provided for in 19 U.S.C. 1520(c)(1) is not an
alternative to the relief provided for in 19 U.S.C. 1514, it
affords only "limited relief in the situations defined therein."

HOLDING:

     The evidence submitted in this case was insufficient to
grant the petition filed under 19 U.S.C. 1520(c)(1), the denial
of which is the subject of this protest.  The protest is DENIED. 
A copy of this decision should be attached to the Form 19, Notice
of Action, to be sent to the protestant.

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division