CLA-2 CO:R:C:F 955863 K
District Director
U.S. Customs Service
44845 Falcon Place
Sterling, Virginia 20166
RE: Application For Further Review of Protest No. 5401-94-100005;
Hand-made Wax Figures
Dear District Director:
The following is our response to the referral by your office
received on February 7, 1994, of the request for further review
of the above-referenced protest.
FACTS:
The consumption entry covering the imported merchandise was
liquidated on October 1, 1993, under the provision for other toy
models, other than made to a scale of the actual article at the
ratio of 1 to 85 or smaller, in subheading 9503.80.6020,
Harmonize Tariff Schedule of the United States (HTSUS)(1993),
with duty at the general rate of 6.8 percent ad valorem. A timely
protest (presumedly under section 101.6(a) of the Customs
Regulations) was received on January 1, 1994. The protestant
requests reliquidation of the entry under the provision for
original sculptures and statuary, in any material, in subheading
9703.00.00, free of duty. Your office is now of the opinion that
the figures are classifiable in subheading 9502.10.4000, HTSUS
(1993), as other dolls not over 33 cm in height, with duty at the
general rate of 12 percent ad valorem.
The imported merchandise consists of fourteen wax figures
approximately 25 cm in height of human figures which contain
miniature reproductions of garments that are said to be
historically accurate. Textile hair adds to the life like
appearance of the figures and some of the figures carry weapons,
baskets, or similar objects. The figures are executed by hand by
Anne-Marie Amlard of France. The literature submitted indicates
that each piece is unique, signed and numbered. The invoice for
each figure indicates a number, presumedly a style number. In any
event, the numbers range from 35B through 69B for thirteen of the
figures and the remaining figure has a style number of 3B.
ISSUE:
The issue is whether the figures as described above qualify
as original sculptures and statuary in subheading 9703.00.00,
HTSUS.
LAW AND ANALYSIS:
Subheading 9703.00.00, HTSUS, provides for the free entry of
original sculptures and statuary, in any material. Note 3.,
Chapter 97, HTSUS states that "heading 9703 does not apply to
mass-produced reproductions or works of conventional
craftsmanship of a commercial character". Additional U.S. Note
1., Chapter 97, states that "heading 9703 covers not only
original sculpture made by the sculptor, but also the first 12
castings, replicas or reproductions made from a sculptor's
original work or model, by the sculptor himself or by another
artist, with or without a change in scale and whether or not the
sculptor is alive at the time the castings, replicas or
reproductions are completed."
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, which represents the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and General Rules of
Interpretation of the HTSUS. The EN for 9703.00.00 indicates that
original sculptures may be in any material (stone, reconstituted
stone, terra-cotta, wood, ivory, metal, wax, etc.), in the round,
in relief, or in intaglio. The works may be produced by two
processes. In the first process, the sculptor carves the work
direct from hard materials. In the second, the sculptor models
soft materials into figures; these are then cast in bronze or in
plaster, or are fired or otherwise hardened, or they may be
reproduced by the sculptor in marble or in other hard materials.
In the second process EN further describes the process
usually followed by the sculptor as follows.
He begins by roughing out his idea as a model, also known as
a maquette, (usually on a reduced scale) in clay or other
plastic material; with this as a basis, he then models a
"clay form". This "clay form" is seldom sold, but is usually
destroyed after it has served for moulding a very limited
number of copies decided in advance by the artist, or it is
placed in a museum for study purposes. These reproductions
include, firstly, the "plaster model" produced directly from
the "clay form". This "plaster model" is used either as a
model for the execution of the work in stone or wood, or for
preparing moulds for casting in metal or wax.
Further, a sculpture or statuary must be an original, that
is, it must be original in conception, design, and execution. The
law, as previously stated, permits the free entry of the original
sculpture plus the first 12 castings, replicas or reproductions.
Section 10.48 of the Customs Regulations outlines the necessary
evidence that is required to be filed with an import entry in
which free entry is claimed under subheading 9703.00.00, HTSUS.
We have interpreted subheading 9703.00.00, HTSUS, as covering
sculptures and statuary that are representative of works of the
free fine arts that are produced by professional sculptors rather
than mass-produced works of skilled craftsmen. Generally, we
recognize the formal education of an individual in the free fine
arts for purposes of establishing professional status for
subheading 9703.00.00, HTSUS. In the absence of a formal
educational background, evidence that an individual's works have
been accepted for exhibition in fine arts museums or an affidavit
by the curator of a fine arts museum that examples of the
individual's works are of museum quality and therefore
representative of the free fine arts may be submitted to show
professional status.
Although the figures may have been produced by one of the two
processes described in the EN, no documentation has been
submitted to show that any of the individual figures is original
in design, conception or execution or within the statutory
allowance of the first 12 castings, replicas or reproductions of
an original sculpture or statuary. No documentation has been
submitted to show that the figures are created by a professional
sculptor. We are satisfied that based on the record, the figures
do not qualify for classification in subheading 9703.00.00,
HTSUS.
Subheading 9503.80.6020, HTSUS (1993), requires that models
classifiable within this subheading must incorporate a motor.
The figures do not incorporate a motor. Accordingly, the figures
are not classified in subheading 9503.80.6020, HTSUS. We conclude
that the figures as depicted in the literature are classified as
other dolls, in subheading 9502.10.4000, HTSUS (1993).
HOLDING:
The figures as described are classified as other dolls
representing only human beings, whether or not dressed, not
stuffed, not over 33 cm in height, in subheading 9502.10.4000,
HTSUS (1993), with duty at the general rate of 12 percent ad
valorem. (Note that under the 1995 tariff, subheading
9502.10.4000, redesignated as subheading 9502.10.0020, is free of
duty.)
You are directed to deny the protest for the claim of
classification under subheading 9703.00.00, HTSUS. The entry was
liquidated in subheading 9503.80.6020, HTSUS (1993), with duty at
6.8 percent ad valorem. The correct classification is in
subheading 9502.10.4000, HTSUS (1993), with duty at the rate of
12 percent ad valorem. However, the protestant should have the
benefit of the liquidation of the entry at the rate of duty at
6.8 percent ad valorem.
The protestant indicated that the figures were imported for
display purposes and exported to France. If the articles were not
used in the United States and were exported, the protestant may
want to consider the applicability of a claim for drawback
(refund of duty), under 19 U.S.C. 1313.
In accordance with Section 3A(ll)(b) of Customs Directive 099
3550-065, Revised Protest Directive, dated August 4, 1993, a copy
of this decision attached to Customs Form 19, Notice of Action,
should be provided by your office to the protestant no later than
60 days from the date of this decision and any reliquidations of
entries in accordance with this decision must be accomplished
prior thereto. Sixty days from the date of this decision the
Office of Regulations and Rulings will take steps to make this
decision available to Customs personnel via the Customs Rulings
Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division