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HQ 229721




May 13, 2003

LIQ-9-01 RR:CR:DR
229721RDC
CATEGORY: PROTEST

Port Director of Customs
101 E Main Street
Norfolk, VA. 23510
Att: Randy Pugh

RE: Protest number 1401-02-100161; Request for Further Review of Protest; Classification; Mistake of fact; 19 USC § 1520(c); essential character; General Rules of Interpretation.

Dear Sir or Madam:

On October 21, 2002, Protest number 1401-02-100161 was forwarded to this office for further review. We have considered the evidence provided and the points raised by your office and the Protestant. Our decision follows.

FACTS:

The Protestant, Jansens & Dieperink B.V. (“Jansens”) is the importer of record for the subject merchandise and protests the denial of its Petition for Reliquidation under 19 U.S.C. § 1520(c).

The CF 7501, prepared by Kuehne & Nagel, Inc., shows that the goods were shipped from the Netherlands to Nebraska. On the CF 7501 the merchandise is described as “alum reserv, etc, n/tanks, >3” and subheading 7611.00.0090, Harmonized Tariff Schedule of the United States, (HTSUS); a duty rate of 2.6 percent was stated originally. That subheading and duty rate are crossed out by hand and replaced with subheading 7610.90.0080, HTSUS, and a duty rate of 5.7 percent. According to Customs’ automated data collection system (ACS), the entry was liquidated on March 9, 2001, at a duty rate of 5.7 percent. The invoice, dated January 24, 2001, from Jansens to Cargill Dow describes the goods as “aluminum silo parts.” This invoice states that the goods “were packed into 33 pcs. 40 ft. HC containers.” The CF 3461 lists thirty-three container numbers.

On February 20, 2001, a CF 29, Notice of Action was sent to Cargill Dow and advised that the goods entered with entry number 101-xxxx546-4 had been re-classified. The CF 29 stated: “aluminum silo parts have been reclassified to 7610.90.00, at a 5.7% duty rate.” Jansens filed protest number 1401-01-100104 on July 12, 2001, through Kuehne & Nagel, Inc. This Protest stated, “we are filing protest in accordance with 19 CFR 174.11(b) under the provision of section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514) we request reclassification to tariff number 7611.00.00[ ] per the attached letter from the shipper / importer.” Attached to the CF 19 is a copy of an e-mail from the Protestant to Kuehne & Nagel detailing the shipping instructions and value for the transaction. According to the “liquidation transmittal” prepared by the port, this Protest was denied on July 16, 2001, as untimely filed. The entry was liquidated on March 9, 2001, and per 19 U.S.C. § 1514, became final 90 days later, i.e., June 9, 2001, but the Protest was filed on July 12, 2002, after the liquidation was final.

On February 15, 2002, Jansens through Kuehne & Nagel, Inc., filed a petition per 19 U.S.C. § 1520(c), number 1401-02-200004, seeking reclassification of the silo parts under subheading 7611.00.0000, HTSUS, and reliquidation of the entry. In its Petition, Jansens states that the parts for each silo required approximately 3 containers for shipping and a total of 16 silos were shipped in 48 containers. The Protestant states, “this project consisted of 16 silos, for which certain sections of all sixteen silos were loaded in the 33 containers that were cleared on this entry. The essential character of the silo project by value 60% and quantity 70% were met on this entry.” The remaining 15 containers of the 48 were entered with a second entry, number 101-xxxx927-0. According to the CF 7501 for entry number 101-xxxx927-0 the goods were entered under subheading 7611.00.0090, HTSUS, on February 19, 2001. The invoice attached to that CF 7501, dated February 7, 2001, from Jansens to Cargill Dow, LLC, describes the goods as “aluminum silo parts.”

In this Petition number 1401-02-200004, the Protestant argues, in part,

“the team specialist ‘inadvertence’ was proceeding with liquidation based on an incorrect inference drawn from the record ‘aluminum silo parts.’ Further to our claim of ‘inadvertence’ is shipment number two, which was the balance of the project arriving at the port within two weeks of the first shipment which was entered with the same documents evidencing tariff 7611.00.0000 [sic] was accepted as entered . . . . Please find the attached packing list evidencing the essential character in the 33 containers cleared on this entry. . . . . Also evidencing our claim is the binding ruling from Rotterdam District Customs. . . . . The silo project would not have been able to be assembled without either part of both shipments, therefore one should not be classified differently that [sic] the other one.”

Attached to this Petition number 1401-02-200004, labeled “attachment A” is a letter from Jansens to Kuehne & Nagel, dated June 12, 2001, stating that Cargill / Dow ordered 16 silos which were manufactured in the Netherlands. Further, the letter states, “the siloparts for these 16 silos were stored inside 48 pcs 40 ft containers. These 48 containers were shipped in 2 lots of 33 and 15 containers.” The letter describes the following silo parts that were shipped in the containers: bundle railings; roof sections; shell sections (packages); shellcone sections or cone / skirt sections; middle cone sections; cone / outlet; case / parts; bundle strips; chair part.” This letter also has attached what appears to be a simple diagram of a silo and photocopies of photographs of silos.

“Attachment B” to the Petition is a packing list prepared by Jansens and dated January 24, 2001. This list states that the goods were shipped in 33 40 foot containers to Cargill Dow in Nebraska and describes the contents of each container by – what we assume to be - packing number, description, quantity and weight. The following is an exact reproduction of the text that appears for container one on the packing list.

01) container no. HJCU 775540-2 total weight 8.786 kgs pack. nr. discr.
Qaunt.
Weight kgs
9051916 roofsection
12
1680
9051917 roofsection
12
1680
9051923 roofsection
12
1680
9051924 roofsection
12
1680
9051934 roofsection
12
1680
9051954 bundle / railing
1
20
90519129 case / spare parts
4
195
90519130 case / spare parts
2
100
90519146 case / spare parts
10
145
9051954 case / spare parts
82
286

Other containers include goods of different descriptions. For example, container 7 contains goods described as “middlecone,” container 12 contains goods described as “outletcone,” container 27 contains goods described as “shellsection,” and container 25 contains goods described as “ladder.”

“Attachment C” is a translation of a “binding tariff information” issued by the European Community. The good is described as “aluminum silo with a content capacity of over 300 litres, disassembled, for use in the petrochemical industry.” The classification is stated as 7611.00.00. This ruling was issued on June 5, 2001, about four months after the protested entry was made. The ruling is stated to have been issued based on “descriptions” and “brochures” which are not identified nor included with this attachment. There is no explanation nor evidence showing the relationship between this ruling and the goods entered with the protested entry.

On April 4, 2002, the port denied Jansens; Petition for Reliquidation under § 1520(c)(1) because, “the issue cannot be corrected under 520(c).” There is included in the file a “note to file” signed by the import specialist who reclassified the goods and dated February 27, 2002. In part this note states,

“As originally entered, the filer classified the merchandise in 7611.00.0090 as completed aluminum silos. The documents submitted with the entry did not support that the units were completed silos. The invoice described the merchandise to be ‘silo parts.’ Because 7611.00.00 does not provide for parts of silos, classification in 7611.00.0090 would not apply (unless it could be established that the parts comprised the essential character of the whole).”

The Protestant, through its counsel filed the instant Protest number 1401-02-100161, dated June 28, 2002, on July 1, 2002. Jansens protests the Norfolk port’s refusal to reliquidate under 19 U.S.C. § 1520(c)(1) entry number 101-xxxx546-4. The Protestant states that,
it is our understanding that based on the commercial invoice description, the import specialist reclassified the merchandise under the provision for aluminum structures and parts of structures in subheading 7610.90.00, HTSUS, dutiable at the rate of 5.7% ad valorem. . . . . We believe that the Customs import specialist was unaware that the entry consisted of substantially complete silos in disassembled condition. We believe that the import specialist relied upon the misleading commercial invoice description to reclassify the merchandise as parts of structures. Since the import specialist was mistaken as to the true nature of the merchandise, a ‘mistake of fact’ correctable under 19 U.S.C. § 1520(c) has occurred.”

Jansens contends that the entered merchandise was properly “classifiable under subheading 7611.00.0090, HTSUS.” On October 21, 2002, Protest number 1401-02-100161 was forwarded to this office for further review. On April 29, 2003, Customs received an additional submission from Jansens’ counsel with regard to the instant Protest.

ISSUE:

Was the liquidation of the subject merchandise under subheading 7610.90.0080, HTSUSA, due to a “clerical error, mistake of fact, or other inadvertence” correctable per 19 USC § 1520(c)?

LAW AND ANALYSIS:

We note that the instant Protest was timely filed, i.e., within 90 days of the denial of the Request for Reliquidation (19 USC § 1514(c)(3)(B)). The Request for Reliquidation was denied on April 4, 2002, and the subject Protest was filed July 1, 2002. Under 19 USC § 1514(a) “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . the refusal to reliquidate an entry under section 1520(c) . . . shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section (19 USC §1514(a)(7). Hence, the matter protested, the refusal to reliquidate an entry under § 1520(c) is subject to protest.

The criteria for granting a request for further review are set forth in 19 CFR § 174.24 which states: further review will be accorded to the party filing an application for further review which meets the requirements of § 174.25 and at least one of the criterion in § 174.24. The Protestant contends that per 19 CFR § 174.24(b) further review is justified because this Protest involves questions of law or fact that have not been ruled upon by Customs or the Customs court. We agree.

Jansens has requested reliquidation of the subject entry per 19 U.S.C. § 1520(c). Section 520(c) of the Tariff Act of 1930, as codified at 19 U.S.C. § 1520(c), is an exception to the finality of §1514. Per 19 U.S.C. § 1520(c):
the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry or reconciliation to correct-- (1) a clerical error, mistake of fact, or other inadvertence, whether or not resulting from or contained in electronic transmission, 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 Customs Service within one year after the date of liquidation or exaction; . . . .

Therefore, per § 1520(c)(1) Customs may reliquidate the protested entry to correct “a clerical error, mistake of fact, or other inadvertence.” The Protestant contends that the import specialist misunderstood the nature of the goods and thus misclassified the goods, i.e., classified the goods under subheading 7610.90.00, HTSUS. However, we are not convinced that the correct classification for the entered goods is, as the Protestant contends, subheading 7611.00.00, HTSUS. Obviously, until the correct classification is determined an incorrect classification cannot be identified nor give rise to reliquidation per § 1520(c)(1).

First, there is insufficient evidence presented by the Protestant to determine the correct classification of the entered goods. Jansens asserts that the goods entered constitute incomplete or unfinished articles having the essential character - per General Rule of Interpretation (“GRI”) 2(a), HTSUS, - of complete or finished silos provided for in heading 7611, HTSUS. However, the documents provided coupled with the statement from the Customs broker and counsel do not establish that goods entered are the parts and components which have the essential character of a finite number of aluminum silos, imported unassembled. There is no evidence to support this conclusion, nor is there other evidence of record from which we can independently determine the correct classification.

Second, the only attempt to explain how the goods entered, admittedly silo parts, have the essential character to a finite number of aluminum silos, imported unassembled is the broker’s statement: the essential character of the silo project by value 60% and quantity 70% were met on this entry.” This contention without explanation of how this conclusion was reached and how the evidence supports such a conclusion is not compelling. Further, the Protestant, and its counsel simply keep stating this conclusion: that the goods entered are silo parts, which because they constitute complete unassembled silos, have the essential character of complete aluminum silos. The additional submission of April 28, 2003, also advised that the Protestant has a website containing “descriptive information on the construction of the aluminum silos and their use in the petrochemical industry for storage of petrochemical products.” However, there is no explanation of how, using the General Rules of Interpretation, the goods entered have the essential characteristic that make them classifiable in heading 7610, HTSUS.

Attachment A to Petition number 1401-02-200004 includes a diagram of a silo. Parts of the silo in this diagram are labeled: railing, roof sections, shell sections, spiral stair, shell cone or cone / skirt, middle cone sections, and outlet cone. However, no explanation as to how many of these parts is necessary to construct a complete silo. The June 12, 2001, letter from Jansens to Kuehne & Nagel states that 16 aluminum silos were ordered; that these silos were shipped in 48 containers. The first 33 containers were entered with the protested entry. The remaining 15 containers constituted a second entry, number 101-xxxxx270. Jansens describes the following silo parts that were shipped in the containers: bundle railings; roof sections; shell sections (packages); shellcone sections or cone / skirt sections; middle cone sections; cone / outlet; case / parts; bundle strips; chair part.” It is not possible to conclude that the entered silo parts have the essential character of a complete silo without knowing whether a complete or substantially complete silo was actually entered.

In general “essential character” has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. The factor which determines essential character will vary as between different kinds of goods. It may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of constituent material in relations to the use of goods. From the information provided by the Protestant, i.e., the packing list, descriptions and diagram, there is no way to conclude that the essential character of the goods entered is that of complete or substantially complete silos. There is no way to determine if any complete or substantially complete silos constituted the disputed entry because the Protestant does not explain how many of each of the shipped parts are needed to construct a complete silo. Before it can be determined that the essential character of the silo parts was that of substantially complete silos, it is necessary to know if, in fact, enough parts to constitute substantially complete silos were entered. Since Jansens has not explained how many of which parts are needed to assembly a complete silo it cannot be known even if enough parts to substantially complete a single silo were entered. Therefore, it cannot be determined what, if anything, constitutes the essential character of the goods shipped.

The Protestant’s broker offers the fact that the second entry of silo parts, entry number 101-xxxxx270, was liquidation with the silo parts classified under in heading 7611, HTSUS, as asserted by Jansens, as proof that the Customs tacitly agreed with this classification. However, entry number 101-xxxxx270 was coded “by-pass” which means neither the entry nor the documents constituting the entry were examined by Customs – that entry was liquidation by computer function with no decision by Customs as to the appropriate classification of the goods. Since the Protestant has not proven that “a clerical error, mistake of fact, or other inadvertence” has occurred in the entry or liquidation, relief is not available per § 1520(c)(1). The error or mistake of fact per § 1520(c)(1) must also be adverse to the importer, Jansens. Obviously, that an error occurred must be proven before it can be determined whether that error is adverse to the importer.

Moreover, § 1520(c)(1) does not permit reliquidation to correct “an error in the construction of a law.” It is well settled that the classification of goods is a legal determination: In Mattel, Inc. v. United States (377 F.Supp. 955, Cust. Ct. (1974)) Mattel imported wigs for dolls. Customs classified the dolls’ wigs as toys when the proper classification was as wigs at a lesser rate of duty. Mattel sought relief under § 1520(c), but the Customs Court held, “an attempt to correct an error of judgment on the part of the collector in classifying merchandise is a mistake of law” and remedied only by 19 U.S.C. § 1514. (Id. at 962). The Protestant did file a Protest per § 1514 on July 12, 2001, but since the entry liquidated more than 90 days prior, i.e., March 9, 2001, that Protest was untimely. It is also well settled that § 1520(c) is not an additional or alternative relief to that provide by § 1514, but rather affords limited relief where an unnoticed or unintentional error has been committed." (CSD 93-25, August 20, 1993).

In Phillips Petroleum Company v. United States, (54 CCPA 7, 11, C.A.D. 893 (1966)) the importer filed no protest within sixty [now ninety] days after the liquidation of the entries but sought relief per § 1520(c)(1) 297 days after liquidation because “liquidation of both entries was based upon . . . erroneous net values.” After the § 1520(c)(1) petition was denied, the importer filed protest per § 1514 against denial. The court held that § 1520(c)(1) is an additional exception to the finality of 19 U.S.C. § 1514 - not an alternative to § 1514. And stated “§ 520(c)(1) is not remedial for every conceivable form of mistake or inadvertence adverse to an importer, but the statute offer "limited relief in the situations defined therein." (Id. at 10). Therefore Jansens cannot use a Petition for reliquidation per § 1520(c) to remedy its failure to timely file a protest per § 1514. See also Godchaux-Henderson Sugar Co., Inc. v U. S., (496 F.Supp 1326 (Cust. Ct. 1980)); ITT Corporation v. United States, (24 F.3d 1384, 1387 n4 (U.S. App. 1994)).

In its February 15, 2002, Request for Reliquidation, prepared by Kuehne, Jansens contends that a clerical error and inadvertence occurred when the import specialist inadvertently proceeded with the liquidation of the entry under the incorrect subheading which was based on descriptions of the goods in the entry documents. In the attachment, dated April 4, 2002, to its § 1520(c)(1) Petition, the Protestant states that “since the import specialist was mistaken as to the true nature of the merchandise, a ‘mistake of fact’ correctable under 19 U.S.C. §1520(c) has occurred.” Further, in its additional submission of April 28, 2003, the Protestant argues, “clearly, the import specialist’s decision to reclassify the described ‘aluminum silo parts’ as parts of structures was based on her misunderstanding of the nature of the merchandise, bringing her mistake squarely under the cases and rulings cited in our protest covering “mistake of fact.”

On the contrary, the Protestant is confusing a mistake of fact with a mistake of law: a mistake of fact occurs when a decision is based on a reasonable belief that a fact exists differently than in reality, and a mistake of law occurs when the legal consequences of a given set of facts are incorrectly interpreted or anticipated (C.J. Tower & Sons of Buffalo, Inc. v. United States, 336 F. Supp. 1395 (Cust. Ct. 1972) aff’d 499 F. 2d 1277 (CCPA 1974)). In C.J. Tower & Sons of Buffalo, Inc. v. United States, emergency war material eligible for duty free treatment was entered by the broker and duty paid. The parties conceded that both district Customs and the importer were unaware of the facts justifying duty-free entry until after the liquidations became final. The Customs Court stated, “such lack of knowledge, both in kind and degree, is such as to clearly come within the statutory language, "mistake of fact, or other inadvertence" (336 F. Supp. 1395, 1399 (Cust. Ct. 1972)).

In the Protestant’s case there were no facts unknown to the importer or the import specialist. Jansens contends that “the import specialist’s decision to reclassify the described “aluminum silo parts” as parts of structures was based on her misunderstanding of the nature of the merchandise” based on the description from the invoice. We disagree. By virtue of entering the goods under subheading 7611.00.00 as an aluminum tank, Jansens asserted its position that the merchandise described on the invoice as “aluminum silo parts” had the essential character of a complete unassembled silo. It is undisputed that if any one of the 33 containers constituting the disputed entry had been opened upon its arrival in Blair, Nebraska, and examined the contents could only have been described as “aluminum silo parts.” The Protestant does not contend that any assembled silos were shipped. The import specialist had to actually reject the Protestant classification and substitute according to her own judgment the correct classification. Clearly, therefore, if any mistake was made it was a mistake of law, i.e., the legal consequences, i.e., the classification, of a given set of facts, the entry of the silo parts, were incorrectly interpreted, the parts really constituted an unassembled but whole silo.

However, the Protestant argues that because the import specialist did not request further information about the entry “this means that the import specialist did not even consider essential character at the time the CF-29 was issued . . .” and the goods were reclassified. Therefore, the Protestant concludes, the import specialist’s alleged error in misclassification did not amount to an error in the construction of law. Regardless of what the import specialist who reclassified the goods considered or did not consider, goods are classified by application of the general rules of interpretation, beginning with GRI 1 according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, the remaining GRIs may be applied. Clearly, the analysis required to classify a good under the HTSUS, codified at 19 U.S.C. § 1202 is a legal decision requiring an interpretation and construction of a law. Consequently, even if 22222222222222222222222222222222222222the mistake alleged were proven, such a mistake would amount to “an error in the construction of a law” and would not be remedied by § 1520(c).

In Degussa Canada Ltd. v. US, (889 F.Supp. 1543 (CIT 1995), aff'd, 87 F.3d 1301 (Fed. Cir. 1996)) the importer entered automotive emission catalysts which were classified by Customs as “as other parts and accessories of motor vehicles.” Degussa Canada argued that the incorrect classification occurred because the Detroit District Director was unaware of certain facts, i.e., that an Application for Further Review with respect to the Buffalo entries was pending before Customs Headquarters. Degussa claimed that if the Detroit District Director had been aware of this fact he would have waited for Headquarters to act on the AFR before liquidating the entries. Therefore, the classification of the entries by the Detroit District Director resulted from a clerical error, mistake of fact, or other inadvertence. The Court of International Trade held,

[i]t is fundamental that a determination by the Customs Service that the imported merchandise is covered by a particular provision or item of the tariff schedules is a conclusion of law. . . . . Therefore, an erroneous classification of imported merchandise is not remediable as a clerical error, mistake of fact, or inadvertence under section 1520(c) (1).

Id. at 1546.

Jansens further contends that HRL 962205 (June 9, 1999) does not apply to its Petition. In HRL 962205 the protestant entered “bus shell assemblies” under the subheading for bodies of motor vehicles, then filed a petition per § 1520(c) for reliquidation claiming that the assemblies were properly classified as motor vehicles, with which classification Customs agreed. However, the § 1520(c) petition was denied because “the evidence show[ed] that the broker made a mistake as to what constitutes the essential character of the subject merchandise - a mistake of law.” Jansens argues that HRL 962205 is not relevant because in that case the entry documents contained a clear description as to what was entered but in the disputed entry at issue here, the invoice “provided a limited description, when the true nature of the merchandise was substantially complete silos in disassembled condition.” The Protestant likens the facts at issue to the facts in Zaki Corporation v. United States, (960 F. Supp. 350 (Ct. Intl. Trade 1997)) and Taban Company v. United States, 960 F. Supp. 326 (1997)).

In Taban the plaintiff’s Customs broker entered goods consisting of dual tape cassette combination stereos. The entered goods were properly classifiable as combination stereos with AM/FM radio, incorporating dual cassette decks with tape players incapable of recording under subheading 8527.31.40, HTSUS. The plaintiff protested denial of its § 1520(c)(1) petition and argued that four entries of stereos were classified under the wrong tariff provision due to a mistake of fact by plaintiff's broker and due to a subsequent mistake of fact by Customs as to the physical nature of the merchandise. The Taban Court held that the "broker made a mistake of fact when she entered the merchandise believing it to be radiobroadcast receivers instead of combination articles.” Id. at 335.

In Zaki Corporation v. United States, (960 F. Supp. 350; Ct. Intl. Trade (1997)) the CIT found that the company was entitled to reliquidation, pursuant to 19 USC § 1520(c)(1), after meeting a three prong test. The court found that the company met the first prong of the test because the company's broker made a mistake of fact when she entered the merchandise and the exact physical properties of the merchandise were not known to the broker or to customs. Clearly the facts in Jansens case are very different than those in Zaki or Taban where in both cases the goods entered were actually different physically than those believed to be entered. As stated above, it is undisputed that what Jansens entered were various parts of aluminum silos – no party to this entry was mistaken about the physical properties of the goods entered.

A mistake as to the nature of the goods entered which in fact constituted a mistake of fact remedied by § 1520(c) was the subject of Black & White Vegetable Co. v United States, (125 F Supp 2d 531 (Ct. Int’l Trade 2000)). In Black & White it was held that the importer was entitled to reliquidation per § 1520 (c) since mistake regarding the botanical name of entered limes resulted in misclassification because mistake as to proper botanical designation of imported "Persian limes" as "Citrus latifolia" rather than "Citrus aurantifolia" was "mistake of fact," correctable through reliquidation under 19 U.S.C. § 1520(c)(1). In contrast, neither the import specialist nor the importer believed that was being entered with the disputed entry was anything but aluminum silo parts. Whether the essential character of those parts was a complete but unassembled silo is thus not a mistake of fact but a conclusion of law.

Further, per § 1520(c) the error or mistake of fact must also be “manifest from the record or established by documentary evidence” (19 USC § 1520(c)(1)). “Manifest from the record or established by documentary evidence” means that the nature of the error must be observable upon review of the record or upon submission of documentary evidence. In either event, the burden is on the petitioner to establish the nature of the error claimed and to demonstrate that it falls within the ambit of the statute. In this regard Jansens points out that “the only description covering the imported merchandise was the commercial invoice that states ‘aluminum silo parts.’ The Packing list, which contained all the detail on the number and nature of the parts was not submitted with the entry.” This fact, the Protestant argues, coupled with the facts that no further information on the entry was requested and that the “note to the file,” as described above, was written one year after the classification decision was made, according to Jansens, lead one to the inescapable conclusion that when the import specialist reclassified the goods she “did not have sufficient information upon which to make a determination.”

Jansens line of reasoning here is fundamentally flawed. The Protestant presupposes that the invoice when viewed in conjunction with the packing list would have led the import specialist to understand that the entered goods were nothing other than an unassembled aluminum tank, classifiable under subheading 7611.00.00. Clearly, such a conclusion is not inevitable; This office could not classify the entered goods though it had access to all the documents described above. Further, such a conclusion is far from predetermined because Jansens has failed even to prove the import specialist’s classification decisions is incorrect and thus, there is no proof that a classification mistake was made.

Reliquidation per § 1520(c)(1) must be denied because the Protestant has failed to prove that any of the elements required by § 1520(c)(1). There is insufficient proof that an inadvertence or mistake of fact has occurred. Moreover, the error alleged amounts to an error in the construction of a law.

HOLDING:

The protest should be DENIED IN FULL.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. 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, Freedom of Information Act and other public access channels.

Sincerely,

Myles Harmon, Director

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