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HQ 227163

August 20, 1996

LIQ-9-01-RR:IT:EC 227163 GOB


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

RE: Application for Further Review of Protest No. 2304-96-100162; 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.


Fastenal's protest is with respect to the denial of the its petition of December 21, 1995, which requested reliquidation of 26 entries pursuant to 19 U.S.C. 1520(c)(1). The petition was denied on March 28, 1996.

In its petition of December 21, 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 25, 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.

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.


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?


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 December 21, 1995 was denied on March 28, 1996. The protest was received by Customs on June 25, 1996, which date is within the required 90-day period.

The request for reliquidation was also timely filed with respect to most of the entries. The request for reliquidation was not timely filed, however, with respect to any entry which was liquidated after the 19 U.S.C. 1520(c)(1) petition was filed. See PPG Industries, Inc. v. United States, 4 CIT 143, 149, 458 F. Supp. 1220 (1982), where the court stated:

A claim made to Customs prior to liquidation is not timely "inasmuch as section 1520(c)(1) only supports a claim for reliquidation as distinguished from liquidation." [Hensel, Bruckmann and Lorbacher, Inc. v. United States, 57 Cust. Ct. 52 C.D. 2723 (1966)] No valid request for reliquidation can exist when no liquidation has in fact been made. [J.S. Sareussen Marine Supplies Inc. v. United States, 62 Cust. Ct. 449, C.D. 3799 (1969)]

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.

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, 458 F. Supp. 1220 (1982) the court stated (quoting in part from Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29,

...[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, Inc. v. United States, 17 CIT 114 (1993), 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 initially that Fastenal has not established by documentary evidence, nor is it manifest from the record: (a) that the above-described factual situation actually occurred; (b) that, if it 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).


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.


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