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HQ 227054




December 17, 1997

CON-9-09-LIQ-9-01-RR:IT:EC 227054 IOR

CATEGORY: BONDS

Port Director
U.S. Customs Service
511 N.W. Broadway
Portland OR 97209

RE: Application for further review of protest no. 2904-96-100046; temporary importation under bond; 9813.00.30 HTSUS; testing; 19 CFR 10.31(g); 19 U.S.C. ?1520(c)(1)

Dear Sir:

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:

According to the CF 7501, entry ACI-xxxxx97-6, dated December 9, 1994, consisted of 16 packages of "CONNECT TELE NETWORK." According to the CF 7501, the merchandise was entered under subheadings 8543.80.6000 of the Harmonized Tariff Schedule of the United States (HTSUS). The CF 7501 shows that the entry was changed to reflect that the merchandise was classified under subheadings 9027.50.4060, 9013.80.60, and 9031.80.00, HTSUS. The Entry/Immediate Delivery form (CF 3461), dated December 9, 1994, shows the merchandise as classified under subheading 8543.80.6000, HTSUS. The invoice, dated November 11, 1994, states with respect to all of the merchandise as follows:

TAT-12 OPTICAL FIBRE SUBMARINE CABLE SYSTEM ON LOAN ENGINEERS TEST EQUIPMENT FOR USE ON THE ABOVE SYSTEMS AND SUBSEQUENT RETURN TO THE UNITED KINGDOM

On the invoice the merchandise includes advantest optical spectrum analyser, STC OAL optical receiver, STC OAL optical transmitter, STC OAL power supply shelf, advantest optical wavelength meter, JDS variable optical attenuator, and STC OAL supervisory controller. A letter dated February 15, 1995, from the protestant to Customs identifies the imported merchandise and provides a description of how the imported merchandise is used.

A Notice of Action (CF 29), dated March 7, 1995, to the protestant, states that a rate advance is proposed for the following reason:

Optical spectrum analyzer, optical receiver, transmitter and power supply shelf and optical wavelength meter are classified under HTS 9027.50.40/4.9%. Variable optical attenuator is classified under HTS 9013.80.60/9%. Supervisory controller is classified under HTS 9031.80.00/4.9%.

The entry was liquidated, with the changes on the entry as described above, on December 1, 1995.

A protest was filed on behalf of the importer on February 28, 1996. The protest states that the merchandise was entered for consumption on December 9, 1994. The protest further states that the equipment was being imported temporarily for the purpose of testing fiber optic cable by the importer, and that "at the time the district policy was that equipment imported to be used to perform testing on any product was ineligible for temporary entry under the T.I.B. provisions of item 9813.00.30 HTSUS." The protest further states that "the provisions of item 9813.00.30 had been re-interpreted to include test equipment imported temporarily to be used to perform tests on other products." In view of the "reinterpretation" the protest requests that the entry be amended to a T.I.B. entry, and the items classified under subheading 9813.00.30 HTSUS, and states that proof of exportation of the merchandise on June 14, 1995 has been provided. The file does contain a copy of a February 3, 1995 letter from Customs referred to in the protest, and the letter refers to an amendment of the TIB provisions. The file does not include any documentation pertaining to exportation of merchandise.

Your letter of February 3, 1995 is in error. It has never been the position of the Customs Service that the importation of testing equipment itself for use to test other materials would qualify under 9813.00.30, HTSUS. See C.S.D. 82-64 which is cited in the Temporary Importation Under Bond Handbook to explain the scope of Customs position on the scope of "used in connection with a test". Please bring this information to the recipient of that letter.

The protest was denied and the application for further review was approved on May 21, 1996. The port's reason for denial is as follows:

Revision of the testing interputation [sic] was made in Sept. 1993. There is no record of this office dening [sic] a TIB because it was not the specific item being tested since that time. Mr. Duncan denied a use of different TIB provision for this importer regarding "processing."

The May 22, 1996 memorandum from the Port Director states that there is no record of the subject entry having been denied under subheading 9813.00.30, HTSUS.

ISSUE:

Whether the subject entry may be changed from a consumption entry to a TIB pursuant to 19 C.F.R. 10.31(g)?

LAW AND ANALYSIS:

Customs has the authority to grant or deny protestable decisions. According to 19 U.S.C. ?1514(a), these include, "decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to ...(5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof."

The protest concerns the liquidation of the subject entry as a consumption entry under subheadings 9027.50.4060, 9013.80.60, and 9031.80.00, HTSUS. Consequently, the matter protested is protestable in accordance with 19 U.S.C. ?1514(a)(5). The subject entry was liquidated on December 1, 1995. The protest on the liquidation of the entry was filed on February 28, 1996. Consequently, the protest on the subject entry was timely filed.

The protest requests that the subject entry be changed from a consumption entry to a Temporary Importation under Bond (TIB). The Customs Regulations, 10.31(g) (19 C.F.R. 10.31(g)), provide for claiming free entry under Chapter 98, Subchapter XIII, HTSUS, for merchandise that has been previously entered under another provision:

Claim for free entry under Chapter 98, Subchapter XIII, HTSUS may be made for articles of any character described therein which have been previously entered under any other provision of law and the entry amended accordingly upon compliance with the requirements of this section, provided the articles have not been released from Customs custody, or even though released from Customs custody if it is established that the original entry was made on the basis of a clerical error, mistake of fact, or other inadvertence within the meaning of section 520(c)(1), Tariff Act of 1930, as amended, and was brought to the attention of the Customs Service within the time limits of that section. If an entry is so amended, the period of time during which the merchandise may remain in the Customs territory of the United States under bond shall be computed from the date of importation....

To enter merchandise temporarily under bond, the importer must provide the HTSUS subheading number under which entry is claimed. 19 C.F.R. ?10.31(a). Consequently, in order for the protestant to change the subject entries from consumption entries to TIBs, the protestant must show that the entries are classifiable under a subheading providing for temporary importation under bond.

The protestant claims the merchandise is eligible for TIB entry under subheading 9813.00.30, HTSUS, which provides for the temporary importation of articles intended solely for testing, experimental or review purposes, including specifications, photographs and similar articles for use in connection with experiments or for study. Concerning the issue of testing, we stated in HQ 223971, dated May 22, 1992, the following:

Articles may be entered under subheading 9813.00.30, HTSUS, when there is an intention to test the article itself, or when the imported articles or merchandise are imported to be used as the raw material in testing another domestic or imported article. However, free entry is not available for importation of articles which, rather than being tested themselves, are imported to measure the performance of other articles. Generally, the Customs Service has interpreted the provision to preclude purely market tests as being eligible.

As noted in the facts, the statement made in the letter of February 3, 1995, is contrary to the Customs position as noted in HQ 223971. See also C.S.D. 82-64, with respect to stress gauges.

The information provided does not include any evidence on the proposed use of the imported merchandise, other than the statement on the invoice and the February 15, 1995 letter describing the use of the imported merchandise. From the invoice and the letter, it is not clear whether the imported merchandise itself is being tested or whether it is used to measure the performance of other merchandise, consisting of a submarine cable system. Therefore we do not have sufficient information to determine whether the imported merchandise meets the requirements to be imported temporarily, under bond, under subheading 9813.00.30, HTSUS.

However, even if we were to find that the imported merchandise was eligible under subheading 9813.00.30, HTSUS, the protestant has not established that the original entry was made on the basis of a clerical error, mistake of fact or other inadvertence within the meaning of 19 U.S.C. ?1520(c)(1). The protestant does not state any claim whatsoever as its reason for having entered the merchandise under a consumption entry, other than that permission to enter the merchandise under TIB had been requested but had been denied.

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). 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").

It is clear from the protest that any mistake regarding the classification of the subject merchandise was a mistake of law. The Port Director and the protestant refer to the "interpretation" and "reinterpretation" of the applicability of subheading 9813.00.30, HTSUS. There is no indication from the protest that there was any mistake with regard to the facts pertaining to this subject entry. Further, no clerical error, mistake of fact or other inadvertence is alleged, and there is no evidence of such manifest from the record.

We do not find that the protest supports a request to change the consumption entry to a TIB entry. Based on the foregoing, the protestant appeared to choose the alternative of entering the merchandise as a consumption entry rather than as a TIB, a decision made not on ignorance of the facts. Such a decision would be a mistake of law and not a mistake of fact. Consequently, even if the subject merchandise were eligible for TIB, we would find no mistake of fact was present.

HOLDING:

The protest to change the consumption entry to a TIB under 19 C.F.R. 10.31(g) is DENIED, as the requirements of 19 C.F.R. 10.31(g) have not been met and there is no evidence that the subject merchandise is eligible for TIB treatment under 9813.00.30, HTSUS.

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,
Commercial Rulings Division

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