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