HQ W230514 - 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 - United States International Trade Commision Rulings

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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.

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 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. 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. 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 HQ 230236 dated April 1, 2004. 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, 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, 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 forindoor 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, 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., 63 C.C.P.A. 98, 102 (1976), cert. denied, 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, 20 Ct. Int’l Trade at 129. With respect to festive articles, 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 “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, 25 C.I.T. 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), 40 Cust. Bull. 15 (April 5, 2006). we rely upon the more specific legal criteria set forth by the CAFC in Midwest, 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, 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 criterion requires an analysis of whether the consumer displays and uses the subject merchandise only during the Christmas holiday season. In the Midwest 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, 122 F. 3d at 1425. See also Russ Berrie & Co., Inc. v. United States, 381 F.3d 1334 (Fed. Cir. 2004) (finding that among other articles, snowmen decorated with holly satisfied the Midwest 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 Christmascatalogues 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 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, 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, 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. 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, 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, 414 F. Supp. 2d at 1324 (citing Degussa, 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.").

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, 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, 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, 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, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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