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HQ 226182

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April 30, 1996

LIQ-9-01-RR:IT:EC 226182 CC

CATEGORY: LIQUIDATION

Port Director
U.S. Customs Service
200 St. Paul Place
28th Floor
Baltimore, MD 21202

RE: Application for further review of Protest No. 1303-95- 100091; 19 U.S.C. 1520(c)(1); mistake of fact; ITT Corp. v. United States

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:

This protest consists of 22 entries, which the protestant states consists of 1 entry of a truck terrain diesel hydraulic crane and 21 entries of manlifts. The dates of entry for the subject merchandise range from October 6, 1993 to February 28, 1994. The dates these entries were liquidated range from February 4, 1994 to June 17, 1994.

On September 28, 1994 the protestant requested, in accordance with 19 U.S.C. 1520(c)(1), that you reliquidate the entries because at the time of entry, the protestant was "not aware that the crane and manlifts included a significant amount of U.S. components."

On December 5, 1994 the section 1520(c)(1) claim was denied. This protest on the denial of the section 1520(c)(1) claim was filed on February 21, 1995.

ISSUE:

Whether Customs properly denied the protestant's request to reliquidate the subject entries 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.

The subject entries were liquidated under subheading 8426.41.00 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for cranes, including cable cranes, mobile lifting frames, straddle carriers and works trucks fitted with a crane, other machinery, self-propelled. In its letter of September 28, 1994, the broker, on behalf of the protestant, requested the subject entries be reliquidated and stated the following as the purported mistake of fact warranting relief pursuant to 19 U.S.C. 1520(c)(1):

At the time of entry we were not aware that the crane and manlifts included a significant amount of U.S. components. Enclosed is a detailed list of the American components assembled in the crane/manlifts.

We hereby respectfully request that subject entries be reliquidated per corrected CF 7501 and duty refunded. Since we were not aware of the American components, this constituted a mistake of fact rather than a [sic] error involving construction of the law. Relief can be granted under section 520(c)(1) TA 1930 as per appeal number 93-1313 of 5/3/94, ITT Corporation vs United States.

In support of its claim the protestant submitted a significant amount of documentation. This documentation included "corrected" entry summaries (Customs Form (CF) 7501) of the subject entries. These CF 7501's included both the subheading number of the entries as entered (8426.41.00, HTSUS) and what is presumably the claimed subheading number (9802.00.80, HTSUS). Subheading 9802.00.80, HTSUS, provides for the following:

Articles, except goods of heading 9802.00.90, assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating and painting.

In addition, the documentation submitted includes declarations by a Mr. Joseph Dash that the cranes were assembled in part or in whole from components which are products of the U.S. Attached to these declarations are long lists of components parts, which include part numbers, short descriptions of parts, and values.

The protest against Customs refusal to reliquidate, in its entirety, is the following:

Protest is made against Customs decision not to reliquidate under section 520(c) TA 1930. We feel that appeal 93-1313 of 5/3/94, ITT Corporation vs United States addresses the specific issue involved in these entries.

Attached to the protest was the letter of September 28, 1994, requesting reliquidation, and the documentation submitted with that letter, described above.

In ITT Corp. v. United States, 24 F. 3d 1384, 1387 (Fed. Cir. 1994), the court found that reliquidation under 19 U.S.C. 1520(c) requires both notice and substantiation. Notice of a clerical error, mistake of fact, or other inadvertence includes asserting the existence of a clerical error, mistake of fact, or other inadvertence "with sufficient particularity to allow remedial action." See, also, PPG Industries, Inc., v. United States, 4 CIT 143, 147-148 (1982); and Hambro Automotive Corp. v. United States, 81 Cust. Ct. 29, 31, 458 F. Supp. 1220, C.D. 4761 (1978).

Although it is not entirely clear what the protestant's claim is, essentially, the protestant's claim for relief pursuant to 19 U.S.C. 1520(c) appears to be the following: 1)the imported goods contained U.S. components; 2) the protestant was unaware of the U.S. components, which is a mistake of fact; and 3) ITT Corp. v. United States, supra, supports the protestant's claim. Therefore, the protestant appears to conclude that the subject entries should be reliquidated under subheading 9802.00.80, HTSUS.

The protestant has failed to meet either the notice or substantiation requirements for relief pursuant to 19 U.S.C. 1520(c)(1). The protest consists of vague assertions and suppositions concerning U.S. components of which the protestant was allegedly unaware. It is unclear what is the nature of the protestant's's claim and no assertion of the purported mistake has been presented in sufficient particularity to allow relief. As stated by the Court of International Trade in Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983), assertions of counsel are not 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."

Even if we were to find the protestant had met the notice requirement, clearly the substantiation requirement has not been met. 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." Clearly, there is no mistake of fact manifest from the record. Although the protestant has submitted a plethora of documentation, submitting the documentation is all the protestant has done; the protestant has utterly failed to explain in any way how this documentation supports any purported claim for relief pursuant to section 1520(c). For example, the protestant has failed to explain how the documentation shows that the subject merchandise was made of U.S. components and fits the terms of subheading 9802.00.80, HTSUS. In addition, the protestant has not demonstrated how the submitted documentation shows that it was unaware of any alleged U.S. components or any other purported mistake, and how any such mistake was a mistake of fact rather than a mistake of law. The protestant has failed to explain how ITT Corp. v. United States, supra, is analogous to its protest or in any way supports its claim for relief. In fact, the protestant states in the protest that "ITT Corp. v. United States addresses the specific issue involved in these entries," without having defined or articulated what is the specific issue. Finally, the protestant has submitted a declaration from a Mr. Joseph Dash, without stating what is Mr. Dash's title, expertise, relationship to the protestant, etc., which would permit us to attach any significance to his declaration.

Consequently, there has been absolutely no basis presented for reliquidating the subject entries pursuant to 19 U.S.C. 1520(c)(1). The protestant's claim is therefore denied.

Finally, we note that the protest does not meet the requirements for the contents of a protest, section 174.13 of the Customs Regulations (19 CFR 174.13), which provides the following:

(a) A protest shall contain the following information:

(6) The nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal.

Clearly, as discussed above, the protest does not contain a clear explanation of the nature of or justification for the matter protested. Consequently, the protest does not meet the requirements of 19 CFR 174.13.

HOLDING:

The denial of the protestant's request to reliquidate the subject entries under 19 U.S.C. 1520(c)(1) was proper. Therefore the protest is DENIED.

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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See also:

• Tariff No.: 8426.41.00 - Derricks, cranes and other lifting machinery nesi, self-propelled, on tires
• Tariff No.: 9802.00.80 - U.S. articles assembled abroad, which have not lost their physical identity or have not advanced in value or improved in condition abroad
• Tariff No.: 9802.00.90 - Textile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, etc.