CLA-2 RR:TC:FC 960105 MMC
Port Director of Customs
PO Box 619050
Dallas/Fort Worth, Texas 75261
RE: Application for Further Review of Protest No. 5501-96-100343;
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 application for further
review of protest 5501-96-100343 concerning your classification
decision regarding a variety of wind-up musical waterballs with
holiday motifs, under the Harmonized Tariff Schedule of the
United States (HTS). Descriptive literature as well as samples
of the subject articles were submitted for our review.
FACTS:
The subject articles are described as wind-up musical
waterballs. Each depicts a different scene with a holiday motif
and plays a seasonal tune and has iridescent snow flakes that
"fall" when the article is shaken by hand. The waterballs
measure approximately 5- inches high. The base and figures
appear to be composed of poly resin. The ball itself is made of
glass and encloses water. The musical movement is encased in the
base and operates by winding a small metal key-like article
located underneath the base. 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 in August 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:
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 wind-up musical waterballs are classifiable as
festive articles or as music boxes.
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 musical waterballs fall within the
scope of the term "ornament(s)" is an essential issue in the
Midwest case on appeal. 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.
As the question of the scope of the tariff term "ornament"
is before the CAFC, 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:
The protest should be DENIED. The wind-up musical waterglobes
are classifiable under subheading 9208.10.00, HTS, 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," with a 1996 general column
one duty rate of 3.2 percent ad valorem.
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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels. A copy of this
decision should be attached to the Customs Form 19, Notice of
Action on the protest, to be returned to the protestant.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division