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HQ 225679




January 19, 1996

LIQ-9-01-RR:IT:EC 225679 CC

CATEGORY: LIQUIDATION

Port Director
U.S. Customs Service
Plaza Nine Building
6th Floor
55 Erieview Plaza
Cleveland, OH 44114

RE: Application for further review of Protest No. 4110-93- 100053; 19 U.S.C. 1520(c)(1); mistake of fact; ladies' jackets

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

The entry the subject of this protest consisted of ladies' woven nylon jackets. The merchandise was entered on October 1, 1991. The entry was liquidated on January 10, 1992 under subheading 6202.93.5010 of the Harmonized Tariff Schedule of the United States (HTSUS), which provided for anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, other, women's.

On July 7, 1992 the protestant requested, in accordance with 19 U.S.C. 1520(c)(1), that you reliquidate the entry under subheading 6202.93.4500, HTSUS, which provides for anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), of man-made fibers, other, other, other, water resistant (emphasis added).

Therefore, the protestant's claim is that there was a mistake of fact in classifying the merchandise under a subheading that did not provide for water resistant jackets, when the jackets were water resistant. The protestant claims that both the importer and import specialist were unaware of the true nature of the merchandise, since both the commercial and visaed invoice did not indicate that jackets featured a water resistant coating.

On January 29, 1993 the section 1520(c)(1) claim was denied. This protest on the denial of the section 1520(c)(1) claim was filed on April 22, 1993.

ISSUE:

Whether Customs properly denied the protestant's request to reliquidate the subject entry under 19 U.S.C. 1520(c)(1)?

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)(7) were timely filed.

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 error must be manifest from the record or established by documentary evidence and brought to the attention of the appropriate Customs officer within one year from the date of liquidation. As stated in PPG Industries, Inc. v. United States, 7 CIT 118 (1984), the following three conditions must be satisfied in order for an entry to be reliquidated to correct a mistake of fact pursuant to section 1520(c)(1):

(1) A mistake of fact must exist;

(2) The mistake of fact must be manifest from the record or established by documentary evidence; and

(3) The mistake of fact must be brought to the attention of the Customs Service within the time requirements of the statute.

Consequently, the protestant must first show that the subject merchandise was misclassified. Whether the subject merchandise is classified as "water resistant" is dependent on the application Additional U.S. Note 2 to Chapter 62, HTSUS. That note provides that for the purposes of subheading 6202.93.45, among other subheadings, the term "water resistant" means that garments classifiable in that subheading must have a water resistance (see ASTM designations D 3600-81 and D 3781-79) such that, under a head pressure of 600 millimeters, not more than 1.0 gram of water penetrates after two minutes when tested in accordance with AATCC Test Method 35-1985. This water resistance must be the result of a rubber or plastics application to the outer shell, lining or inner lining.

In support of its claim that the subject merchandise is classified as "water resistant," the protestant has submitted a laboratory report, issued by a private laboratory, in which AATCC test method 85-1885 (sic) was purported to have been utilized. Neither the name of the private laboratory, nor the date of the testing, is provided on the report, although it is stamped as received on March 23, 1992. Five colors were listed as being tested: "red, purple, white, turq, and black."

The information in the laboratory report is insufficient to ensure that the tested merchandise was the same or identical to that of the subject entry. For example, we note that the colors of merchandise tested are not identical to the colors listed in the entry documents for the subject entry. In addition, the submitted laboratory report is insufficient to ensure that the methodology and techniques utilized by the outside laboratory are in compliance with the methodology and techniques required to show water resistance. See, e.g., HQ 955711 of July 21, 1994. Therefore, the laboratory report does not show that for the entered merchandise the requirements of Additional U.S. Note 2 to Chapter 62 have been met.

Since the record does not show that the subject merchandise is "water resistant" pursuant to Additional U.S. Note 2 to Chapter 62, we find that the classification of the entered merchandise was proper. Therefore, there is no mistake as to the classification of the subject merchandise, and the protest should be DENIED.

Even it were shown that classification of the subject entry was incorrect, the protestant's request for reliquidation pursuant to section 1520(c)(1) could not be approved for the following reasons.

A mistake of fact occurs when a person understands the facts to be other than what they really are and takes some action based on that erroneous belief, whereas a mistake of law occurs when a person knows the true facts of the case but has a mistaken belief as to the legal consequences of those facts. See, e.g., C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 21, C.D. 4327, 336 F. Supp. 1395 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974); Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 458 F.Supp. 1220 (1978), aff'd, 66 CCPA 113, 603 F.2d. 850 (1979); and PPG Industries, Inc. v. United States, 7 CIT 118 (1984). The courts have taken the position that generally an error in the classification of merchandise is not a clerical error, mistake of fact, or inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is an error in the construction of the law. See, e.g., Cavazos v. United States, 9 CIT 628 (1985); Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547, 377 F.Supp. 955 (1974); and Fibrous Glass Products v. United States, 63 Cust. Ct. 62, C.D. 3874 (1969), appeal dismissed, 57 CCPA 141 (1970).

The protestant claims that the commercial invoice as well as the visaed invoice did not indicate that the subject merchandise contained a water resistant coating. The protestant claims, therefore, that neither it nor the import specialist was aware that the subject merchandise was water resistant.

As stated above, a mistake of fact must be manifest from the record or established by documentary evidence. See, ITT Corp. v. United States, 24 F. 3d 1384, 1387 (Fed. Cir. 1994), Mistakes of fact that are not manifest from [the] record ... must be established by documentary evidence"; see also, United States v. Lineiro, 37 CCPA 5, 10, C.A.D. 410 (1949), "[d]etermination of issues in customs litigation may not be based on supposition." Although some of the invoices fail to indicate that the subject merchandise was water resistant, the multiple country declaration states that it contains a coating consisting of "W/R PU" (water resistant polyurethane). The record shows, therefore, that the protestant had knowledge at the time of entry that the subject merchandise contained water resistant features.

Consequently, the protestant could have requested Customs to test the merchandise to determine if it met the requirements of Additional U.S. Note 2 to Chapter 62, making it classifiable as water resistant. In Universal Cooperatives, Inc., v. United States, 13 CIT 516, 715 F. Supp. 1113 (1989), the court distinguishes between decisional mistakes, "in which a party may make the wrong choice between two known alternative set[s] of facts... [which] must be challenged under [19 U.S.C. 1514]" and ignorant mistakes, "in which a party is unaware of the existence of the correct alternative set of facts...[which] must be remedied under [19 U.S.C. 1520]." Since evidence in the entry documentation was available to show that the subject merchandise had water resistant features, the failure of the protestant to enter the goods as "water resistant" or to request that the goods be sent to a Customs laboratory for testing was a decisional mistake. Thus no mistake of fact was present, and no remedy is available under 19 U.S.C. 1520(c)(1).

The protestant has sought to rely on C.J. Tower, supra, in claiming that reliquidation under section 1520(c)(1) is warranted. In that case, section 1520(c)(1) relief was granted where the importer and Customs were unaware of the nature of the imported merchandise until after the liquidation had become final. In this case, as stated above, the record shows that clear evidence of the existence of the water resistant features of the subject merchandise was present at the time of entry. Consequently, the facts of this case are distinguishable from those of C.J. Tower.

The more analogous case is B.S. Livingston & Co., Inc. v. United States, 13 CIT 889 (1989). The court found in that case that where a correct invoice description existed but the merchandise was improperly classified, no mistake of fact existed.

HOLDING:

No mistake of fact was present under 19 U.S.C. 1520(c)(1) in an alleged error in the tariff classification of the subject entry. Consequently, the protest should be DENIED in full.

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,

Director, International Trade

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