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HQ 960105




June 16, 1997

CLA-2 RR:TC:FC 960105 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9208.10.00

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

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

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

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