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HQ 960052




July 7, 1997

CLA-2 RR:TC:FC 960052 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6810.99.00; 9208.10.00; 3926.40.00; 4823.90.20

Port Director of Customs
PO Box 619050
Dallas/Fort Worth, Texas 75261

RE: Application for Further Review of Protest No. 5501-96-100316; 19 CFR ?176.31, 19 CFR ?174.31; Midwest of Cannon Falls v. United States

Dear Port Director:

The following is our response to the application for further review of protest 5501-96-100316 concerning your classification decision regarding a variety of statuettes with holiday motifs, under the Harmonized Tariff Schedule of the United States (HTS). Protestant's submission indicates that descriptive literature as well as samples of the subject articles were submitted for our review, however no such material was received in this office.

FACTS:

The articles which comprised the protested entry and are the subject of the classification protest are identified as follows:

HLS-C5-1422 Set of four carolers. The carolers are dressed in green and red winter clothes and the sheet music they hold is for the Christmas carol, "It Came Upon A Midnight Clear." Protestant was directed to enter the article under heading 3926, HTS, which provides for other articles of plastic.

HLS-C5-0053 Agglomerated stone Native American. This statuette is dressed in garb associated with Native Americans; however the garb has been colored green and red. Additionally, the statuette holds an evergreen wreath in one hand and a garland with lights is draped over his other arm. Protestant was directed to enter the article under heading 3926, HTS, which provides for other articles of plastic.

HLS-C6-0707 Various Agglomerated stone statuettes of ghosts, mummies, skeletons, skulls, witches and jack-o-lanterns. These statuettes are packaged for retail sale. The header card is orange and black and states "Halloween Ornaments Seasonal Shop." Protestant was directed to enter the article under heading 3926, HTS, which provides for other articles of plastic.

HLS-C6-7236 Snowman. The snowman is holding what appears to be a Christmas stocking. Holly and berries decorate the base of the statuette. Protestant was directed to enter the article under heading 4823, HTS, which provides for other paper or paperboard.

HLS-C6-0693C Agglomerated stone fisherman Santa music box. Statuette is dressed like Santa with various fishing equipment. Additionally, it plays the song "Santa Claus is Coming to Town." Protestant was directed to enter the article under heading 9208, HTS, which provides for music boxes.

According to protestant, all of these articles are only sold in the seasonal shop section of their stores.

Protestant asserts that all the articles 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." In the alternative, protestant has suggested that as the articles identified by item numbers HLS-C5-0053, HLS-C6-0707 and HLS-C6-0693C are made from agglomerated stone and are therefore classifiable under heading 6810, HTS, which provides for "articles of cement, of concrete or of artificial stone, whether or not reinforced." The entry, made in May 1996, was liquidated on July 26, 1996, and a protest was timely filed on October 24, 1996. The headings under consideration are:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914

4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers

6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced

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 various statuettes are classifiable as festive articles.

LAW AND ANALYSIS:

With the exception of the agglomerated stone issue, we are of the opinion that he factual issues in this case do 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.... [emphasis added]

(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 certain statuettes fall within the scope of the term "ornament(s)" and what is the scope of that term are issues essential to 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.

Concerning items HLS-C5-0053, the Native American statuette, and HLS-C6-0707, various agglomerated stone statuettes of ghosts, mummies, skeletons, skulls, witches and jack-o-lanterns, sufficient evidence was provided indicating that these articles are made of agglomerated stone. Therefore, they are classified under heading 6810, HTS, specifically, subheading 6810.99.00, HTS, which provides for "Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other."
HOLDING:

The protest should be DENIED EXCEPT to the extent that the reclassification of items HLS-C5-0053, the Native American statuette, and HLS-C6-0707, various agglomerated stone statuettes of ghosts, mummies, skeletons, skulls, witches and jack-o-lanterns, under subheading 6810.99.00, HTS, results in a net duty reduction and partial allowance.

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

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