CLA-2 RR:TC:FC 960230 RC
Port Director
U.S. Customs Service
P.O. Box 619050
Dallas/Fort Worth Airport, Texas 75261-0950
RE: Decision on Application for Further Review of Protest No.
5501-96-100376, filed December 5, 1996, concerning the
classification of decorative water globes and articles of
plastic with festive motifs; Midwest of Cannon Falls v.
United States; 19 CFR 176.31, 19 CFR 174.31
Dear Port Director:
The following is our response to the request for further
review of Protest No. 5501-96-100376 concerning the
classification of decorative water globes and articles of plastic
with festive motifs under the Harmonized Tariff Schedule of the
United States (HTSUS). Depictions of the subject articles were
submitted for our review.
FACTS:
Item no's WP95472, WG0255-2, WG0254-3, WG0286/1, WG00594,
WG0028, and WG00267 are "water globes." Item no's WG0126-2,
WG0265-5, and WG0277 are decorative articles of plastic. The
glass globes, approximately 5- inches in height, contain water
and iridescent "snow flakes" that appear to fall when the globes
are shaken. The bases and figures appear to be composed of poly
resin. Each article depicts a scene with a holiday motif and
contains a wind-up music mechanism that plays a seasonal tune.
According to protestant, all of these articles are only sold in
the seasonal shop section of their stores.
Protestant asserts that the water globes are classifiable
under heading 9505, HTS, which provides for "festive, carnival or
other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof." The
subject articles were entered in May of 1996, and those entries
were liquidated on August 16, 1996, under heading 9208, HTS,
which provides for "Music boxes, fairground organs, mechanical
street organs, mechanical singing birds, musical saws and other
musical instruments not falling within any other heading of this
chapter; decoy calls of all kinds; whistles, call horns and other
mouth-blown sound signaling instruments." A protest was timely
filed on November 14, 1996. The headings under consideration
are:
3926 Other articles of plastics
9208 Music boxes, fairground organs, mechanical street
organs, mechanical singing birds, musical saws and
other musical instruments not falling within any other
heading of this chapter; decoy calls of all kinds;
whistles, call horns and other mouth-blown sound
signaling instruments
9505 Festive, carnival or other entertainment articles,
including magic tricks and practical joke articles;
parts and accessories thereof
ISSUE:
Whether the instant water globes and plastic decorative
articles are classifiable as festive.
LAW AND ANALYSIS:
We are of the opinion that this case does not meet the
criteria for further review of protests. 19 CFR 176.31 entitled
Reliquidation following decision of a court states the following:
(a) Decision of U.S. Court of International Trade(CIT).
Except as provided in paragraph (c) of this section, an
entry which is the subject of a decision of the U.S. Court
of International Trade shall be reliquidated in accordance
with the judgment order thereon at the expiration of 60 days
from the date of the decision, unless an appeal or motion
for a rehearing is filed . . . .
* * *
(Sec. 514, 46 Stat. 734, as amended; 19 U.S.C. 1514)
(emphasis added)
Although this particular entry is not the actual subject of
Midwest of Cannon Falls v. United States, Court No. 92-03-00206,
1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade, January 18, 1996)
[hereinafter Midwest], whether articles constitute "ornament(s)"
is central to the issues presented in Midwest and, as you are
aware, the United States government has appealed the Midwest
decision to the Court of Appeals for the Federal Circuit (CAFC).
On April 8, 1997, oral arguments were heard at the CAFC on the
appeal. Adopting the principles espoused by the CIT in Midwest
while the case is still under consideration on appeal would
violate the spirit of 19 CFR 176.31. Consequently, this office
will not entertain the festive issue at this time. Pursuant to
19 CFR 174.31, protestant may contest this decision by filing a
civil action in the CIT.
HOLDING:
Item no's WP95472, WG0255-2, WG0254-3, WG0286/1, WG00594,
WG0028, and WG00267 are classifiable under subheading
9208.10.0000, HTSUS, as "Music boxes, fairground organs,
mechanical street organs, mechanical singing birds, musical saws
and other musical instruments not falling within any other
heading of this chapter; decoy calls of all kinds; whistles, call
horns and other mouth-blown sound signaling instruments: Music
boxes," dutiable at the column one duty rate of 3.2 percent ad
valorem (1996). Item no's WG0126-2, WG0265-5, and WG0277 are
classifiable in subheading 3926.40.0000 HTSUS, as "Other articles
of plastics and articles of other materials of headings 3901 to
3914: Statuettes and other ornamental articles," dutiable at the
column one duty rate of 5.3 percent ad valorem (1996).
You are instructed to deny the protest in full. A copy of
this decision should be attached to the Customs Form 19 and
provided to the protestant as part of the notice of action on the
protest.
In accordance with Section 3A (11)(b) of Customs Directive
0993550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision, together with the Customs Form 19,
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 Ruling Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division