HQ W230514

April 17, 2007

LIQ-9-01

RR:CTF:ER 230514 EMS

U.S. Customs and Border Protection

Port Director, Providence Service Port

49 Pavilion Avenue

Providence, RI 02905

ATTN: Richard A. Barrette

Re: Application for Further Review of Protest No. 0502-04-100014; 19
U.S.C.

> § 1520(c)(1); mistake of fact; alleged evolution in the principal use
> of the imported merchandise

Dear Mr. Barrette:

This is in response to your correspondence dated June 17, 2004,
requesting further review of Protest No. 0502-04-100014. Grunfeld,
Desiderio, Lebowitz, Silverman & Klestadt LLP filed the Protest on
behalf of the importer, Swarovski North America, Ltd. (Swarovski). The
protestant challenges the decision of the Providence Service Port (the
port) to deny two § 520(c) petitions for the reliquidation of the
entries of certain imported merchandise.

It is the port's position that the misclassification of the imported
merchandise resulted from the importer's failure to notify CBP of an
evolution in the principal use of the goods. Below is our decision as to
whether the classification of the subject merchandise is a mistake of
fact remediable under 19 U.S.C. § 1520(c)(1) when an importer fails to
provide accurate information to CBP to establish the principal use of
imported merchandise at the time of entry.

**FACTS:**

The port has designated a representative entry made on August 16, 2001,
for which the Entry Summary (CBP Form 7501) shows that the proposed
classification of the subject merchandise was under subheading
7013.91.5000 of the Harmonized Tariff Schedule of the United States
(HTSUS) (2001). This subheading covers glassware of a kind used for
indoor decoration that is made of lead crystal and valued at more than
five dollars. The corresponding rate of duty for this subheading was six
percent ad valorem at the time that the imported merchandise was
entered. The commercial invoice accompanying the CBP Form 7501 described
all of the subject merchandise as "Swarovski Christmas Ornament 2001"
with corresponding item number "267942." The commercial invoice also
provided the following information: "Customs Tar. No." as the
"70139100"; and the product group as "CHRISTMASART." We note that the
subject merchandise is a three-dimensional crystal star ornament with a
diameter of three inches. It is an annual edition for the year 2001,
which year is identified on a small silver tone plate affixed to the
ornament at the point of attachment of a textile cord for hanging.

According to the Automated Commercial System (ACS), the port liquidated
the entry under "no change" liquidation procedures on June 28, 2002, and
pursuant to the classification and corresponding rate of duty asserted
on the CBP Form 7501. On June 30, 2003, the protestant filed a § 520(c)
petition challenging this liquidation. The petition asserted that the
subject merchandise was misclassified under subheading 7013.91.5000,
HTSUS (2001), and countered that the correct classification was under
subheading 9505.10.1000, HTSUS (2001). This subheading covers festive
articles, specifically Christmas ornaments made of glass, and was
duty-free at the time that the imported merchandise was entered.

The § 520(c) petition attributed the alleged misclassification of the
subject merchandise to an erroneous determination of its principal use
by the port. In support of its position, the protestant alleged that the
broker and CBP classified the subject merchandise in reliance upon a
prior determination of the principal use of certain Swarovski Christmas
ornaments imported in 1993. This prior determination dates back to
October 29, 1993, when the port issued a Notice of Action (CBP Form 29)
to the protestant, in which the port proposed a rate advance for three
entries of Swarovksi Christmas ornaments. The port's position on the CBP
Form 29 was that the Swarovski's asserted classification under
subheading 7013.91.5000, HTSUS (1993), dutiable at a rate of 6 percent
ad valorem, was incorrect, and that the goods were more specifically
provided for under subheading 9505.10.1000, HTSUS (1993), as Christmas
ornaments made of glass, dutiable at a rate of 6.6 percent ad valorem.

Mark Eldridge, Controller for Swarovski, responded to the Notice of
Action in a letter dated November 12, 1993, on behalf of Swarovski,
setting forth the reasons why classification under subheading
9505.10.10000, HTSUS (1993), was incorrect. In pertinent part, the
letter stated as follows:

> Swarovski markets the item in question as a holiday ornament only to
> add additional appeal to its many uses.... This items' true realistic
> purpose is that of a home decoration that can be displayed year round.
> ... There is no real difference between this article and any other
> finished piece received from Austria that is charged a 6% duty rate by
> U.S. Customs.

This letter was accompanied by a handwritten note signed by Mr.
Eldridge, who is identified as the "Controller" on stationary bearing
the Swarovski name and mark. The handwritten note explains that a
picture of the "1993 Ornament" at issue in the Notice of Action is
included, at the request of the port. This image depicts a
three-dimensional crystal star ornament. The year "1993" is identified
on a small plate affixed to the ornament at the point of attachment of a
textile cord for hanging. We note that this article is the Swarovski
1993 annual edition Christmas ornament.

According to ACS, CBP liquidated the three entries covered by the Notice
of Action in September 1994 as a no-change liquidation, which meant that
the notice of liquidation was issued at the duty rate deposited upon
entry, consistent with the classification under subheading 7013.91.5000,
HTSUS (1993), as originally proposed by Swarovski on the Entry Summary.
The § 520(c) petition alleged that during the ten years following the
liquidation of these three entries, Swarovski's broker "continued to
follow Customs' decision without ever verifying that the facts upon
which it was based remained true" when, in fact, "these ornaments are
known to be used as Christmas ornaments." With respect to the subject
merchandise, the § 520(c) petition further alleged that "the belief that
these ornaments are for general home decoration based upon the 1993
letter submitted by Mr. Eldridge is a mistake of fact" and concludes
that "\[t\]his mistake of fact led to the erroneous classification at
issue."

The port disagreed with that conclusion and denied the § 520(c) petition
on December 23, 2003. It was the port's position that the liquidation of
the subject merchandise under subheading 7013.91.5000, HTSUS (2001), was
not a mistake of fact, as the letter dated November 12, 1993, which set
forth the protestant's belief as to the principal use of the previously
imported merchandise, either "factually reflected the status of these
goods or was a self\[-\]serving statement to maintain the 6% rate \[of
duty under the HTSUS\]."

The Protest (CBP Form 19) against the port's denial of the § 520(c)
petition was filed on March 19, 2004, and forwarded by the port to our
office for further review. The crux of the protestant's position is as
follows:

> By 2001, 2002 and 2003, the principal use had changed to use as
> Christmas decorations as is demonstrated by the enclosed exhibits. The
> facts determined in 1993 no longer applied. Thus, the 2001, 2002 and
> 2003 classifications at time of entry by the customs broker and at
> time of liquidation by Customs were based on "mistake of fact,
> clerical error or other inadvertence."

The referenced exhibits included a letter from the importer and certain
marketing materials for 2001, 2002, and 2003. The letter, dated March
16, 2004, is addressed to the port and signed by Swarovski's Directors
of Marketing and Legal Affairs. It had been drafted in the wake of this
classification controversy and contains statements that are intended to
establish that Swarovski marketed certain of its goods specifically for
use during the Christmas holidays and that its customers used these
goods as holiday decorations. The letter is not notarized, nor does it
bear any other form of authentication.

Only two of the accompanying marketing materials are for the promotion
of the subject merchandise. A semi-legible copy of the cover of
October/November 2001 issue of the Swarovski magazine, which is
distributed to certain of Swarovski's customers, prominently features a
single hanging ornament that is identical to the subject merchandise. In
the background are other round hanging ornaments that are less defined,
but of a shape traditionally hung from Christmas trees. The other
advertisement for the subject merchandise appears to be a copy of a
full-page, generic magazine-type advertisement that prominently features
a single hanging ornament that is the subject merchandise. This ornament
is identified as the "2001 Swarovski Annual Edition Christmas Ornament,
3" diam., \$55." In the upper right-hand corner of the advertisement is
the Swarovski name and mark. Also featured in the advertisement are
images of three identical Swarovski articles of crystal which are
identified as "The Christmas Tree, 3 ¼"h, \$125, NEW." At the bottom of
the advertisement is the statement "THE MAGIC OF CRYSTAL."

The other marketing materials include direct mail postcards allegedly
for Swarovski's retail customers, another Swarovski magazine cover,
generic advertisements for use in magazines, tent cards, small display
posters, and what appears to be an image of an in-store display. Some of
these marketing materials are for the 2002 and 2003 Swarovski annual
edition Christmas ornaments. We note that these ornaments are
three-dimensional crystal stars with a diameter similar to that of the
subject merchandise, although the shape of the star is distinct for each
year. The appropriate year is identified on a small silver tone plate
affixed to the ornament at the point of attachment of a textile cord for
hanging. The marketing materials for the 2002 and 2003 annual edition
Christmas ornaments contain slogans such as "For the Season of Light,"
"Trim your Tree with Brilliance," "Sparkling Holidays, Inspired by
Swarovski," and "dress up your Christmas with Crystal."

In addition to the marketing materials described above, the protestant
has also asserted that classification of the subject merchandise under
subheading 9505.10.0000, HTSUS (2001), derives additional support from
other binding tariff classification rulings which demonstrate that
"current Swarovksi items" are festive articles classifiable under this
provision. The protestant did not identify these rulings, but a search
of the Customs Online Rulings Search System (CROSS) database yields two
rulings on the classification of various Swarovski Christmas ornaments,
NY J85953 and NY J85954, both of which are dated July 25, 2003. We note
that NY J85954 specifically covers an article identified by item number
622498, which was found to be classified under subheading 9505.10.1000,
HTSUS (2003). According to our own research, this article is Swarovski's
2003 annual edition Christmas ornament, as described above.

In a memorandum to our office dated April 9, 2004, which accompanied the
submission of the application for further review of the Protest, the
port concluded that "many of the items in the petitioned \[entry\]
summaries \[for the instant Protest\] are properly classifiable under
the provision for Christmas ornaments." The port has indicated to our
office that this statement specifically includes the subject
merchandise. It is the port's position that relief is unavailable under
19 U.S.C. § 1520(c)(1) given that the subject merchandise was classified
under subheading 7013.91.5000, HTSUS (2001), consistent with the
importer's proposed classification and the principal use asserted by the
importer for certain Christmas ornaments imported in 1993.

**ISSUE:**

Whether the classification of the subject merchandise is a mistake of
fact remediable under 19 U.S.C. § 1520(c)(1) when an importer fails to
provide accurate information to CBP to establish the principal use of
the imported merchandise at the time of entry?

# LAW AND ANLYSIS: 

Initially, we note that the protest against the denial of the § 520(c)
petition was timely filed pursuant to 19 U.S.C. § 1514(c)(3)(B). The
port denied the petition on December 23, 2003, and Counsel protested the
denial on March 19, 2004, within 90 days of the port's denials, as
prescribed under 19 U.S.C. § 1514(c)(3)(B) (2000). The criteria for
granting a request for further review are set forth in 19 C.F.R. §
174.24 which states, in part, that further review will be accorded to
the party filing an application which meets at least one of the criteria
enumerated therein. Further review is justified because this protest
involves questions of law and fact that have not been ruled upon, per 19
C.F.R. § 174.24(b).

The protestant seeks reliquidation of the subject entries in its §
520(c) petitions. Section 520(c) of the Tariff Act of 1930, as codified
at 19 U.S.C. § 1520(c), is an exception to the finality of the
liquidation of an entry under 19 U.S.C. § 1514.[^1] Per 19 U.S.C. §
1520(c) (2000) (repealed 2004):

> the Customs Service may, in accordance with regulations prescribed by
> the Secretary, reliquidate an entry or reconciliation to correct\--
> (1) a clerical error, mistake of fact, or other inadvertence, whether
> or not resulting from or contained in electronic transmission, not
> amounting to an error in the construction of a law, adverse to the
> importer and manifest from the record or established by documentary
> evidence, in any entry, liquidation, or other customs transaction,
> when the error, mistake, or inadvertence is brought to the attention
> of the Customs Service within one year after the date of liquidation
> or exaction . . . .

Therefore, CBP may reliquidate the protested entries to correct a
clerical error, mistake of fact, or other inadvertence if three
requirements are satisfied: (1) the error is adverse to the importer\'s
interest; (2) the error is manifest from the record or established by
documentary evidence; and (3) the error is brought to CBP's attention
within one year of the date of liquidation.

The § 520(c) petition was timely filed on June 30, 2003, which was
within one year of June 28, 2002, the date of liquidation for the
subject entries.[^2] In addition, the liquidation of the subject entries
under subheading 7013.91.5000, HTSUS (2001), dutiable at a rate of 6
percent ad valorem, was adverse to the importer, given that goods
classified under subheading 9505.10.1000, HTSUS (2001), were duty-free
at the time of entry. This case turns on whether it is either manifest
from the record or established by the documentary evidence that CBP's
lack of knowledge of the principal use of the imported merchandise
constitutes a mistake of fact that resulted in the misclassification of
the goods.

The courts have taken a liberal interpretation of § 1520(c)(1) in light
of its remedial purpose. Accordingly, the courts have determined that a
party seeking relief under 19 U.S.C. § 1520(c)(1) must "demonstrate from
the entry documents or other evidence, only two points in order to
substantiate its 'mistake of fact': (a) the correct state of facts; and
(b) that either the importer or Customs had a mistaken belief as to the
correct state of facts." [Chrylser Corp. v. United States]{.underline},
24 Ct. Int'l Trade 75, 89 (2000). In addition to substantiating the
mistake of fact, the party must also satisfy the materiality
requirement, i.e. "that the ignorant party would have acted differently
had it known the truth about the mistaken facts." [Hynix Semiconductor
America, Inc. v. United States]{.underline}, 414 F. Supp. 2d 1317,
1326-27 (Ct. Int'l Trade 2006) (citation omitted) ("Hynix").

*The Correct State of the Facts*

Classification of goods under the HTSUS is governed by the General Rules
of Interpretation (GRI). GRI 1 provides that classification shall be
determined according to the terms of the headings of the tariff schedule
and any relative section or chapter notes. In this case, the tariff
headings at issue are 9505**,** which provides, in part, for \"Festive,
carnival or other entertainment articles, \" and 7013, which provides,
in part, for "Glassware of a kind used for...indoor decoration."
However, Note 1(f) to Chapter 70 excludes from classification in that
chapter "Christmas tree ornaments or other articles of chapter 95."

Under heading 9505, the pertinent subheading is 9505.10, which covers
articles of different materials that are classifiable as "Christmas
ornaments." If we determine that the subject merchandise is classifiable
under this subheading, then, in accordance

with Note 1(f) to Chapter 70, the subject merchandise is unconditionally
excluded from classification in Chapter 70. [Cf. Midwest of Cannon
Falls, Inc. v. United States]{.underline}, 122 F.3d 1423, 1429 (Fed.
Cir. 1997) ("Midwest"). In interpreting GRI 1 in this context, we turn
to Additional U.S. Rule of Interpretation 1(a), which provides as
follows:

> a tariff classification controlled by use (other than actual use) is
> to be determined in accordance with the use in the United States at,
> or immediately prior to, the date of importation, of goods of that
> class or kind to which the imported goods belong, and the controlling
> use is the principal use.

In other words, the principal use of the goods in the United States at
the time of importation, and not the actual use of the goods, determines
whether the goods are of a certain class or kind. The "principal use" is
defined as the use "which exceeds any other single use." Conversion of
the Tariff Schedules of the United States Annotated Into the
Nomenclature Structure of the Harmonized System: Submitting Report at
34-35 (USITC Pub. No. 1400)(June 1983).

Generally, to determine the principal use of an article, CBP considers a
variety of factors, including general physical characteristics, the use
of the merchandise, the expectation of the ultimate purchaser, channels
of trade, and the environment of sale (accompanying accessories, manner
of advertisement and display). [United States v. Carborundum
Co.]{.underline}*,* 63 C.C.P.A. 98, 102 (1976), [cert.
denied]{.underline}*,* 429 U.S. 979 (1976). However, "\[n\]o single
factor is determinative, and none are intended to be requirements for
coming within any particular heading." [Midwest]{.underline}, 20 Ct.
Int'l Trade at 129. With respect to festive articles, [^3] we rely upon
the more specific legal criteria set forth by the CAFC in
[Midwest]{.underline}, which analyzed (1) whether the symbolic qualities
of the merchandise demonstrated that it was "closely associated" with a
particular holiday; and (2) the degree of probability that the
merchandise would be "displayed and used by the consumer only during
\[that holiday\]." 122 F. 3d at 1429.

With respect to the symbolic qualities of the subject merchandise, its
physical characteristics manifest a close association with the Christmas
holiday. We note the presence of an attached textile cord for hanging
from a Christmas tree and the mere three-inch diameter of the ornament,
which is also suitable for hanging from a tree branch. The primary
material of which the subject merchandise is composed is crystal, which
the CAFC has specifically identified as a constituent material for
Christmas ornaments. [Midwest]{.underline}, 122 F. 3d at 1428. Finally,
the star shape is one that is traditionally exhibited during the
Christmas season, as it has specific religious

connotations. While many of Swarovski's articles of crystal are
considered collectible and may be displayed year-round by consumers, the
aforementioned characteristics of the subject merchandise suggest that
it is intended for hanging from a tree during the Christmas season.

The second [Midwest]{.underline} criterion requires an analysis of
whether the consumer displays and uses the subject merchandise only
during the Christmas holiday season. In the [Midwest]{.underline}
decision, the CAFC did not cite to any specific facts concerning the use
of the merchandise at issue in that case. However, the CAFC relied upon
a factual finding that the goods at issue were "advertised and sold to
consumers before the particular holiday\[s\] with which they are
associated." [Midwest]{.underline}, 122 F. 3d at 1425. [See also Russ
Berrie & Co., Inc. v. United States]{.underline}, 381 F.3d 1334 (Fed.
Cir. 2004) (finding that among other articles, snowmen decorated with
holly satisfied the [Midwest]{.underline} criteria because they were
"closely associated" with the Christmas season and, as a matter of fact,
that they were also "listed in Russ Berrie's Christmas...catalogues and
distributed and sold in connection" with the Christmas season).

In the instant case, the documentary evidence concerning the marketing
of the subject merchandise militates in favor of our finding that it is
distributed and sold in connection with the Christmas season. The
Swarovski magazine cover is for the October/November issue, which would
be the appropriate timeframe for marketing an ornament intended for use
during the Christmas season. The cover also includes other traditionally
shaped hanging Christmas tree ornaments, and contextually suggests that
Swarovski intended to advertise the subject merchandise as a trimming
for Christmas trees. Furthermore, the generic magazine advertisement
clearly identifies the subject merchandise as the "2001 Swarovski Annual
Edition Christmas Ornament" and, in also featuring three other Swarovski
crystal Christmas tree figurines, the advertisement contextually
suggests that Swarovski intended to advertise part of its line of
Christmas collectibles. This marketing is also consistent with the entry
invoice, which describes the subject merchandise as the "Swarovski
Christmas Ornament 2001" and identifies it as belonging to the product
group "CHRISTMASART."

With respect to the other documentary evidence provided by the
protestant, it is circumstantial at best, having very little probative
value in our legal analysis. We note that 2001 is the earliest edition
of the Swarovski annual edition Christmas ornaments for which marketing
materials have been provided, and the marketing of these articles in
subsequent years does not demonstrate how the subject merchandise was
marketed in a prior year. In addition, the letter dated March 16, 2004,
addressed to the port and signed by Swarovski's Directors of Marketing
and Legal Affairs, is entitled to little if any weight in this case. It
is not an affidavit and merely contains conclusory statements. Its
utility, if any, is that it implicitly declares that the marketing
documents described above are authentic copies.

Nonetheless, the marketing materials specific to the subject merchandise
and the actual physical attributes thereof demonstrate that the subject
merchandise satisfies both of the [Midwest]{.underline} criteria, and,
therefore, it falls within the class or kind of goods that are
principally used as "Christmas ornaments" pursuant to Additional U.S.
Rule of Interpretation 1(a) to GRI 1. This determination resolves a
question of fact, i.e. "whether merchandise comes within the description
of such terms \[of a tariff provision\] as properly construed." [Marcel
Watch Co. v. United States]{.underline}, 11 F. 3d 1054, 1058 (Fed. Cir.
1993). Accordingly, as a matter of law, the subject merchandise is
excluded from classification in Chapter 70 on the basis of Note 1(f) to
Chapter 70, because it is prima facie classifiable under subheading
9505.10.1000, HTSUS (2001).

The failure of an importer to provide accurate and complete information
concerning the nature of the imported merchandise does not preclude
relief under 19 U.S.C. § 1520(c)(1). In [G&R Produce]{.underline}, the
Court of International Trade (CIT) determined that CBP made a mistake of
fact remediable under 19 U.S.C. § 1520(c)(1) based on its finding that
the inaccurate construction of the tariff schedule in that case stemmed
from CBP's lack of knowledge of the existence of the taxonomical
category for a certain variety of imported limes. 281 F. Supp. 2d at
1332. The CAFC affirmed the CIT's determination, and explicitly
discounted CBP's argument that the CIT's finding that the plaintiff's
broker was unaware of the correct botanical designation for the imported
limes was clearly erroneous. 381 F.3d at 1333. The CAFC declined to
address this argument because the plaintiff "need\[ed\] only prove ...
that Customs made a mistake of fact that did not amount to an error in
the construction of a law." [Id.]{.underline} Similarly, in this case,
the protestant need only demonstrate that CBP made a mistake of fact
that does not amount to a mistake of law, and in so doing, the alleged
mistake of fact must satisfy the materiality requirement implicit in 19
U.S.C. § 1520(c)(1).

*The Materiality Requirement*

In order to meet the materiality requirement, the protestant must show
that "if the correct fact had been known, \[it\] would have resulted in
a different classification." [Degussa Can. Ltd. v. United
States]{.underline}, 87 F.3d 1301, 1304 (Fed. Cir. 1996) ("Degussa").
Satisfying the materiality requirement in this case requires a finding
that the port would not have misapprehended the tariff schedule but for
its mistaken belief as to the principal use of the subject merchandise.
[See Hynix]{.underline}, 414 F. Supp. 2d at 1324 (citing
[Degussa]{.underline}, 87 F.3d at 1304 (\"\[A\] mistake of fact . . . is
a factual error that, if the correct fact had been known, would have
resulted in a different classification.\").

[]{.mark}

The circumstances of this case support a finding that the port would
have classified the subject merchandise under subheading 9505.10.1000,
HTSUS (2001), if it had known the correct principal use of the subject
merchandise. First, there is empirical evidence that the port understood
the legal consequences of the principal use determination for the
classification of the subject merchandise between the competing tariff
provisions at issue. In 1993, the port proposed classifying the three
entries of the substantially similar 1993 edition of the Swarovksi
annual edition Christmas ornament under heading 9505 of the HTSUS
(1993), only to liquidate that merchandise consistent with Swarovski's
proposed classification under subheading 7013.91.5000, HTSUS (1993).
This decision was based on the written declaration that the principal
use of those holiday ornaments was as household decorations not limited
to display during the holiday season. Second, the protestant's position
that the principal use of the subject merchandise is to commemorate the
Christmas season, as demonstrated by the marketing materials, is
undisputed. When viewed in this light, the port's clearly articulated
position that many of the goods covered by the Protest are properly
classified under HTSUS heading 9505 is probative of the port's
comprehension of the legal consequences of the principal use when
classifying the subject merchandise.

The misclassification of the subject merchandise based on the port's
lack of knowledge of the correct principal use is grounded in a mistake
of fact, as previously explained. However, "\[d\]etermining the proper
scope of a classification in the HTSUS is an issue of statutory
interpretation and thus a question of law." [Bauerhin Techs. Ltd. Pshp.
v. United States]{.underline}, 110 F.3d 774, 776 (Fed. Cir. 1997). The
CAFC has taken the firm position that "a mistake of fact that leads to a
misclassification is still a mistake of fact." [Brother Int'l Corp. v.
United States]{.underline}, 464 F.3d 1319, 1324 (Fed. Cir. 2006)
("Brother"). For example, the CAFC has determined that a broker's
mistake of fact as to the essential character of an article of
multifunction office equipment was remediable under 19 U.S.C. §
1520(c)(1), even though the broker subsequently applied the GRIs when
classifying the article under a specific provision of the HTSUS.
According to the CAFC in that case, it was the mistake of fact as to the
essential character of the article and "not the later legal
interpretation, based on the mistaken fact, that resulted in the
misclassification." [Brother]{.underline}, 464 F. 3d at 1324. Likewise,
in this case, the evidence has demonstrated that the port's mistake of
fact as to the principal use of the subject merchandise, rather than any
apparent misconstruction of the HTSUS, resulted in the subsequent
misclassification of the goods under subheading 7013.91.5000, HTSUS
(2001).

**DECISION:**

The Protest should be **GRANTED**. The lead entry that covers the
subject merchandise identified as the Swarovski 2001 annual edition
Christmas ornament should be reliquidated, consistent with the correct
principal use, under subheading 9505.10.1000, HTSUS (2001). This
decision is limited to the specific subject merchandise that was the
subject of the lead entry. Other protested entries that may have been
suspended pending the issuance of this decision should be granted only
if the evidence proffered by the protestant is found to be sufficient to
establish the principal use alleged by the protestant. *Prior to
deciding any other protests that may have been suspended pending the
issuance of this decision, you are directed to contact the Office of
Chief Counsel to determine whether the merchandise covered by the
entries at issue in those other protests is within the scope of ongoing
litigation in the CIT.*

In accordance with the Protest/Petition Processing Handbook (CIS HB,
January 2002, pp. 18 and 21), you are to mail this decision, together
with the CBP Form 19, 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, Regulations and
Rulings, of the Office of International Trade, will make the decision
available to CBP personnel, and to the public on the CBP Home Page on
the World Wide Web at [www.cbp.gov](http://www.cbp.gov/), by means of
the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

> Myles B. Harmon, Director

Commercial and Trade Facilitation Division

[^1]: The Miscellaneous Trade and Technical Corrections Act of 2004
    repealed 19 U.S.C. § 1520(c) and amended 19 U.S.C. § 1514(a) to
    include clerical errors, mistakes of fact, and other inadvertence as
    bases of protest. [See]{.underline} H.R. 1047, 108th Cong. § 2105
    (2004) (enacted). In the instant case, the protestant was entitled
    to request relief under 19 U.S.C. § 1520(c) because the provision
    was in force when CBP liquidated the subject entries.

[^2]: The date one-year from the date of liquidation actually fell on
    Sunday, June 29, 2003, but the petition, which was filed on the
    following Monday, is considered timely under Rule 6(a) of the
    Federal Rules of Civil Procedure. [See]{.underline} HQ 230236 dated
    April 1, 2004.

[^3]: We note that the full scope of heading 9505 is the subject of
    ongoing litigation, which is not addressed in our legal analysis in
    the instant case. As the subject merchandise at issue in this case
    does not have a utilitarian purpose, it escapes this legal
    controversy over the breadth of articles classifiable under heading
    9505, HTSUS. [See generally]{.underline} "Limitation of the
    Application of the Decisions of the Court of International Trade and
    the Court of Appeals for the Federal Circuit in [Park B. Smith v.
    United States]{.underline}, 25 C.I.T. 506 (2001), [affirmed in part,
    vacated in part, and remanded]{.underline}, 347 F. 3d 922 (Fed. Cir.
    2003), 40 Cust. Bull. 15 (April 5, 2006).