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HQ 226707




September 16, 1996

LIQ-9-01-RR:IT:EC 226707 LTO

CATEGORY: LIQUIDATION

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, California 90731

RE: Protest 2720-95-101411; pullover jackets; "water resistant"; 19 U.S.C. 1514; 19 U.S.C. 1520(c)(1); 19 CFR 177.9(b)(2); HQs 75-0026, 955909; NY 876026

Dear Port Director:

This is in reference to Protest 2720-95-101411, which concerns your office's refusal to reliquidate a certain entry (number 4917469-2) of pullover jackets under 19 U.S.C. 1520(c)(1). The merchandise was entered on June 12, 1994, and the entry was liquidated on October 7, 1994. By letter dated October 5, 1995, counsel for the protestant timely requested reliquidation of the entry. Your office refused to reliquidate on November 7, 1995. This decision was timely protested, pursuant to 19 CFR 174.12(e)(2), on December 6, 1995.

FACTS:

The protest concerns three styles of men's woven pullover jackets: classic pullover (style 1111); classic windshirt (style 1114); and classic crew pullover (style 1117). Each is made of a woven nylon fabric and is coated with "Scotchguard," which the protestant contends makes the fabric water resistant, and therefore, classifiable under subheading 6201.93.30, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other water resistant jackets of man-made fibers. The jackets were classified upon liquidation, without being inspected, under subheading 6201.93.35, HTSUS, which provides for other jackets of man-made fibers.

In NY 876026, which was issued to the protestant on September 4, 1992, the jackets under consideration were held to - 2 -
be classifiable under subheading 6201.93.30, HTSUS. Classification was based on an analysis performed by the New York Customs laboratory, wherein the jackets (styles 1111, 1114 and 1117) were found to be "water resistant," as that term is defined in additional U.S. note 2 to chapter 62, HTSUS.

However, in July of 1993, samples of the jackets tested in NY 876026 (styles 1111, 1114 and 1117), prior to their release from Customs custody, were taken to the Los Angeles Customs laboratory for analysis. The results indicated that the garments were not "water resistant." Your office then requested reconsideration of NY 876026.

In HQ 955909, dated April 25, 1994, we affirmed NY 876026. However, we accepted the findings of the Los Angeles Customs laboratory and held that if subsequent laboratory tests revealed that the subject garments were not water resistant, NY 876026 would not control their classification (citing 19 CFR 177.9(b)(2), which provides that "[e]ach ruling letter setting forth the proper classification of an article under the provisions of the [HTSUS] will be applied only with respect to transactions involving articles identical to the samples submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter").

The protestant argues that Customs failed to follow NY 876026 and HQ 955909 in classifying the jackets under subheading 6201.93.35, HTSUS. The protestant further argues that this failure "can only be based upon a mistake of fact," and that such a mistake is correctable pursuant to 19 U.S.C. 1520(c)(1).

ISSUE:

Whether the classification of the jackets under subheading 6201.93.35, HTSUS, is the result of a "mistake of fact."

LAW AND ANALYSIS:

Initially, we note that the subject protest was timely filed pursuant to 19 U.S.C. 1514(c)(3)(B). The date of decision protested was November 7, 1995, the date your office refused to reliquidate the entry, and the protest was filed on December 6, 1995.

Under 19 U.S.C. 1520(c)(1), Customs may reliquidate an entry to correct a clerical error, mistake of fact or other - 3 -
inadvertence, not amounting to an error in the construction of law, when certain conditions are met. The refusal to reliquidate an entry under section 1520(c)(1) is a protestable matter pursuant to 19 U.S.C. 1514(a)(7).

19 U.S.C. 1514 sets forth the proper procedure for an importer to protest the classification and appraisal of merchandise when it believes the Customs Service has misinterpreted the applicable law. A protest must be filed within ninety days after notice of liquidation or reliquidation. Otherwise, the tariff treatment of merchandise is final and conclusive.

19 U.S.C. 1520(c)(1) is an exception to the finality of section 1514. Under section 1520(c)(1) 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. The error must be adverse to the importer and manifest from the record or established by documentary evidence and brought to the attention of the Customs Service within one year after the date of liquidation (the alleged "error" in the instant case was brought to the attention of your office, within one year from the date of liquidation, by letter dated October 5, 1995). The relief provided for in 19 U.S.C. 1520(c)(1) is not an alternative to the relief provided for in the form of protests under 19 U.S.C. 1514; section 1520(c)(1) only affords "limited relief in the situations defined therein." Phillips Petroleum Company v. United States, 54 CCPA 7, 11, C.A.D. 893 (1966), quoted in Godchaux-Henderson Sugar Co., Inc., v. United States, 85 Cust. Ct. 68, 69, C.D. 4874, 496 F.Supp. 1326 (1980); see also, Computime, Inc. v. United States, 9 CIT 553, 555, 622 F.Supp. 1083 (1985); Concentric Pumps, Ltd. v. United States, 10 CIT 505, 508, 643 F.Supp. 623 (1986)).

The protestant contends that the subject merchandise was classified under the wrong HTSUS provision because the appropriate Customs officials overlooked two binding Customs rulings, NY 876026 and HQ 955909. The protestant has provided no documentary evidence to show that the responsible import specialist was unaware of either ruling letter. In fact, the protestant admits that the import specialist had a copy of both rulings. Customs liquidated the entry pursuant to the earlier finding of the Los Angeles Customs laboratory that the jackets, which were not inspected, were not "water resistant." This finding was accepted in HQ 955909. Therefore, the protestant has failed to establish that any error has occurred, as is required under 19 U.S.C. 1520(c)(1).

However, assuming that a classification error was made (that the jackets were, indeed, "water resistant"), we will address the alleged mistake of fact. The courts have consistently taken the position that an erroneous classification of merchandise is not a clerical error, mistake of fact or other inadvertence within the meaning of 19 U.S.C. 1520(c)(1), but is an error in the construction of a law. Mattel Inc. v. United States, 377 F.Supp. 955, 72 Cust. Ct. 257, C.D. 4547 (1974); C.J. Tower & Sons of Buffalo, Inc. v. United States, 336 F.Supp. 1395, 68 Cust. Ct. 17, C.D. 4327, aff'd. 499 F.2d 1277, 61 CCPA 90 (1972). Here, the only error set forth by the protestant is one involving the classification of the imported merchandise. Customs has found that an exception exists and reliquidation is proper when a Customs officer is not aware of a classification ruling. HQ 75-0026, dated January 24, 1975. That ruling also states, however, that if an import specialist takes note of a Headquarters ruling, and incorrectly decides it is not applicable to the merchandise, that decision is an error in the construction of the law, excluded from relief under 19 U.S.C. 1520(c)(1).

In the holding of HQ 955909, we stated that if the subject garments, when tested, were found to be water resistant, they would be classifiable under one provision. We further held that if, when tested, the garments were found not to be water resistant, they would be classifiable under another provision. As the protestant had received two rulings indicating two different laboratory results (and therefore, two different classifications), it was incumbent on the protestant to prove which classification was appropriate for the entry in question. In fact, the protestant still has not, in accordance with 19 CFR 177.9(b)(2), provided any evidence that the jackets involved were identical to the samples submitted in the ruling request. Customs alleged "lack of knowledge of coatings on this import shipment" was a result of the protestant's failure to provide such information. The classification of the garments by the import specialist, if in error, was an error in the construction of law, and excluded from relief under 19 U.S.C. 1520(c)(1).

HOLDING:

The protest is DENIED. Liquidation of the subject entry was not due to a clerical error, mistake of fact or other inadvertence correctable 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, together with the Customs Form 19, - 5 -
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 the 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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