HQ 225194: Protest 2704-93-103738; specially tempered glassware; 19 U.S.C.1520(c)(1); liquidation of entry is not an error or mistake whenthe existence of instructions is unknown to a Customs officialunless this lack of knowledge caused an error or mistake inliquidation.

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 225194

                          July 28, 1994

LIQ-9-01-CO:R:C:E 225194  AJS

CATEGORY: Liquidation

District Director of Customs
300 S. Ferry Street, Terminal Island
San Pedro, California 90731

RE: Protest 2704-93-103738; specially tempered glassware; 19 U.S.C.
1520(c)(1); liquidation of entry is not an error or mistake when
the existence of instructions is unknown to a Customs official
unless this lack of knowledge caused an error or mistake in
liquidation.

Dear Sir:

     This is our decision in Protest 2704-93-103738, dated December
2, 1993, concerning the reliquidation of an entry under 19 U.S.C.
1520(c)(1).

FACTS:

     On June 2, 1993, the import specialist classified merchandise
from the subject entry in accordance with a Customs laboratory
report, issued a Notice of Action to the importer, marked the
appropriate notations on the Customs Form (CF) 7501 and forwarded
the entry for liquidation.

     On June 4, 1993, Customs published a notice in the Federal
Register, 55 FR 31786, inviting comment on the use of polarized
light to test the subject merchandise.  The import specialist
claims that administrative instructions were concurrently issued to
withhold action regarding the subject merchandise.  This office
located instructions from the National Import Specialists (NIS),
dated June 22, 1993, which stated "[i]f you receive entries or
protests in which claims are made that particular products are
specially tempered, it is advisable to obtain samples and send them
to the laboratory for analysis (whether or not you have previous
lab reports on these items)."  

     On June 25, 1993, the subject entry was liquidated based on
the import specialist's instructions of June 2.


                               -2-

ISSUE:

     Whether liquidation of the subject entry was due to a clerical
error, mistake of fact or other inadvertence correctable pursuant
to 19 U.S.C. 1520(c)(1).

LAW AND ANALYSIS:

     Initially, we note that this protest was timely filed
according to 19 U.S.C. 1514(c)(2)(B).  The date of the decision as
to which protest is made was November 9, 1993, and this protest was
filed on December 2, 1993.  In addition, the refusal to reliquidate
an entry is a protestable matter pursuant to 19 U.S.C. 1514(a)(7).

     19 U.S.C. 1520(c)(1) provides that 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, 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 of the appropriate customs officer
within one year after the date of liquidation or exaction."  The
protestant requests reliquidation of the subject entry under
section 1520(c)(1).

     A "clerical error" has been stated by the courts to be "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."  PPG Industries, Inc., v. United States,
7 CIT 118, 124 (1984).  A "mistake of fact" has been described as
"a mistake which takes place when some fact which indeed exists is
unknown, or a fact which is thought to exist, in reality does not
exist."  C.J. Tower & Sons of Buffalo, Inc. v. United States, 68
Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp. 1395, 1399 (1972), aff'd
61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974).  Inadvertence is a
somewhat broader term, and has been defined as "an oversight or
involuntary accident, or the result of inattention or carelessness,
and even as a type of mistake."  Id.  

     In this case, the import specialist forwarded the entry for
liquidation on June 2, 1993.  The import specialist's decision was
based on a Customs laboratory report of May 24, 1993, which
concluded that "an opaque white dinner plate marked 'arcopal
france' is not toughened (specially tempered) in accordance with
Treasury Decision 92-44 dated April 28, 1992."  No evidence was
submitted to indicate that this 



                               -3-

laboratory report was in error.  On June 22, 1993, the NIS issued
instructions to import specialists advising that entries of the
subject merchandise be resubmitted for laboratory analysis.  These
instructions did not specifically require the withholding of
liquidation.  On June 25, 1993, Customs liquidated the subject
entry based on the import specialist's instructions of June 2.  The
Customs official who liquidated the subject entry was not aware of
the June 22 instructions.  Even if the customs official had been
aware of these instructions, no evidence was submitted to establish
that the liquidation would then have been in error.  Customs has
previously stated that if evidence showed that a Customs officer
was unaware of the existence of liquidation instructions, and that
lack of knowledge caused the Customs officer to err, that error
would be correctable under section 1520(c)(1).  HQ 223611 (January
21, 1993).  In this case, the protestant has not established that
a lack of knowledge caused an error or mistake in the liquidation
of the subject entry.  Therefore, the subject entry may not be
reliquidated pursuant to 19 U.S.C. 1520(c)(1).

HOLDING:

     The protest is denied.  The protestant has not established
that lack of knowledge of instructions caused an error or mistake
in the liquidation of the subject entry.  Therefore, reliquidation
of the entry is not permissible pursuant to 19 U.S.C. 1520(c)(1). 


     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, with the Customs Form 19, 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, Lexis, Freedom of
Information Act and other public access channels.


                                 Sincerely,


                                 John Durant, Director
                                 Commercial Rulings Division