CLA-2:OT:RR:CTF:TCM H238490ERB
Port Director, Port of Los Angeles/Long Beach
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
Attn: Linda Simien, Import Specialist
RE: Application for Further Review of Protest No. 2704-12-102766; Tariff classification of glass vases
Dear Port Director:
This is in reference to Application for Further Review (AFR) of Protest No. 2704-12-102766, timely filed on July 30, 2012, on behalf of the importer, Art & Coin Television, LLC (Protestant or Art & Coin). The AFR concerns the tariff classification of one shipment of glass vases from Italy under the Harmonized Tariff Schedule of the United States (HTSUS). No samples were submitted for inspection.
FACTS:
The shipment entered the United States on November 16, 2011, as “original sculptures or statuary, in any material” under heading 9703, HTSUS. U.S. Customs and Border Protection (CBP) liquidated the entry on June 8, 2012 under subheading 7013.99.90, HTSUS, as, “Glassware…: Other glassware: Other: Other: Valued over $5 each.” The merchandise is described as 112 individually wrapped glass pieces, in the Murano glassmaking style. The subject merchandise is purportedly created by Master Glass Artist, Afro Celotto, in his Murano glass studio named Art Glass Studio.
Murano glassmaking began on the Venetian island of Murano as early as the 5th century, and is well known for its exquisite beauty, craftsmanship and utilitarian design. They are often in the shape of bowls or vases. It is a labor intensive and complex process to create each piece, and artisans apprentice for many years before earning the title of Master Craftsman. After a decline in production in the 17th century, Murano underwent a renaissance in the mid-19th century. In the 20th century, tourism helped further revitalize the industry. Today, the glassmakers of Murano are famed for producing exquisite handcrafted art glass, jewelry, mirrors, lenses, and other more conventional glassware products.
On November 29, 2011, CBP issued Form 28, Request for Information to the Importer posing the following questions:
This merchandise has been entered as fine art sculpture. Does Signor Celotto create all of these vases personally or are other artisans involved? Are these vases all individual works or are they ever duplicated? Has the work of Signor Celotto been exhibited in public exhibitions limited to the free fine arts?
In response, Art & Coin stated the following:
Celotto creates all original glass sculptures.
These pieces are individual works of art.
Please see attached documents.
The referenced attached documents included a biography of Afro Celotto which notes the principal components that go into forming original glass sculptures, and a touring schedule of Afro Celotto shows in the United States.
Art Glass Studio then followed up with two letters, both dated March 2, 2012. The first letter stated the following:
We kindly require to avoid import duties to our customer “Art & Coin TV” since it purchased from us glass pieces that have to be considered artworks (see our invoices #63, 64, 65, & 66 of October 5th 2011).
The pieces were shipped by DHL with Bill of Lading # TVS-XF-0927949.
With the shipment we enclosed the export invoices where there was indicated the name of each piece and the custom code for the artwork and the original certifications of artwork authorized by the Export Office – Art Objects – of Venice, Italy.
Herewith enclosed please also find the artist’s resume, his formal education and our declaration about the unique pieces he realized for our customer.
This letter was accompanied by 112 certificates, one per piece, issued by the relevant Italian Customs authorities. Therein stipulated, among other information is the object’s description, the title of each piece, and its dimensions.
The second letter includes the following statement: “With the present declaration I state that the pieces you purchased (see our invoices #63, 64, 65, & 66 of October 5th 2010) have been individually realized by myself in my studio and each one is one of a kind.” This letter bears the signature of Afro Celotto.
On March 6, 2012, CBP issued a second Form 28 seeking samples of the subject vases. However, samples were not submitted to the Port for analysis. Instead, photos and descriptions were submitted with the AFR. On May 22, 2012, CBP issued Form 29, a Notice of Action, reclassifying the goods under subheading 7013.99.90, HTSUS, with a rate advance.
ISSUES:
Whether the subject glass vases are classified as “glassware” in heading 7013, HTSUS, or if as “original sculptures” under heading 9703, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest No. 2704-12-102766 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, Art & Coin argues that CBP’s liquidation of the subject merchandise is inconsistent with previous rulings; Headquarters Ruling (HQ) 966363, dated October 14, 2003 (citing HQ 963158, dated January 14, 2000); and HQ 086100, dated April 3, 1990.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purpose (other than that of heading 7010 or 7018):
7013.99 Other glassware: Other: Other:
7013.99.90 Valued over $3 each: Valued over $5 each
***
9703.00.00 Original sculptures and statuary, in any material
Section XXI, note 3 states the following:
3. Heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character, even if these articles are designed or created by artists.
Additional U.S. Note 1 states the following:
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 applicable Customs Regulations, 19 C.F.R. §10.48, provides the following:
§ 10.48 Engravings, sculptures, etc.
Invoices covering works of art claimed to be free of duty under subheadings 9702.00.00 and 9703.00.00, HTSUS, shall show whether they are originals, replicas, reproductions, or copies, and also the name of the artist who produced them, unless upon examination the Customs officer is satisfied that such statement is not necessary to a proper determination of the facts.
The following evidence shall be filed in connection with the entry: A declaration in the following form by the artist who produced the article, or by the seller, shipper or importer, showing whether it is original, or in the case of sculpture, the original work or model, or one of the first twelve castings, replicas, or reproductions made from the original work or model; and in the case of etchings, engravings, woodcuts, lithographs, or prints made by other than-transfer processes, that they were printed by hand from hand-etched, hand-drawn, or hand-engraved plates, stones or blocks:
I, ___________, do hereby declare that I am the producer, seller, shipper or importer of certain works of art, namely covered by the annexed invoice dated; that any sculptures or statuary included in that invoice are the original works or models or one of the first twelve castings, replicas, or reproductions made from the sculptor’s original work or model; and that any etchings, engravings, woodcuts, lithographs, or prints made by other hand-transfer processes included in that invoice were printed by hand from hand-etched, hand-drawn, or hand-engraved plates, stones or blocks.
The Port Director may waive the declaration requirements set forth in paragraph (b) of this section.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide commentary on the scope of each heading and are thus useful in ascertaining the proper classification of the merchandise. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 97.03 states the following:
The heading excludes the following articles, even if they are designed or created by artists:
(a). Ornamental sculptures of a commercial character.
(b). Articles of personal adornment and other works of conventional craftsmanship of a commercial character (ornaments, religious effigies, etc.).
(c). Mass-produced reproductions in plaster, staff, cement, papier maché, etc.
With the exception of articles of adornment classifiable in heading 71.16 or 71.17, all these articles are classified according to their constituent materials (heading 44.20 for wood, heading 68.02 or 68.15 for stone, heading 69.13 for ceramics, heading 83.06 for base metal, etc.)
As an initial matter, Art & Coin directs CBP to HQ 086100, quoting, “To be classified as sculpture under Chapter 97, the pottery must exhibit rare and special genius attributable to the works of a single artist.” See Robert Siebert v. United States, 65 Cust. Ct. 380, 384, C.D. 4108 (1970); H.H. Elder and Forest Lawn v. United States, 64 Cust. Ct. 182, 184, C.D. 3979 (1970).” That said, HQ 086100 concerned decorative vases and platters made of pottery, and CBP held that as it received no verifiable information regarding the subject pottery and its rare or special nature, CBP could not determine whether it was a work of art or not. That is not the case here.
The articles at issue are decorative blown glass pieces in different models, colors, styles, and dimensions. Determining whether articles are works of art often depends on the professional status of artist. This may be evidenced by the artist’s biography or professional resume, or general acceptance of his or her works in public exhibitions limited to the free fine arts. In addition, each work must be of such fine quality and high artistic merit that it is recognized as an example of the free fine arts by certain art authorities. See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App.1916).
Art & Coin provided the following excerpt of the biography of Afro Celotto:
Afro Celotto was born in Venice, and has been involved in art glass creation since he began his apprenticeship at age 15, with legendary artist Lino Tagliapietra. After working during this time at the Effetre International Company he transferred his skills to other more complicated techniques, such as “La Murrina” earning his “First Master” title. He then earned his apprenticeship at F3 International glass factory, specializing in two of the oldest techniques: filigrana and murrina. When Lino Tagliapietra left F3 International, Mr. Celotto was asked to replace him and so he began first master in F3. In 2000 Mr. Celotto opened his own studio, called Art Glass Studio.
Art & Coin’s response also included a list of exhibitions and galleries featuring his work between 2007 and 2010 around the United States. Therefore, we find that Afro Celotto qualifies as an artist for HTSUS purposes.
Some models of the subject vases appear to have a utilitarian purpose, that of a functional vase. The predecessor to the HTSUS, the Tariff Schedule of the United States (TSUS), specifically excluded utilitarian items from classification as an original sculpture and statuary. Customs has previously held that utilitarian purpose exclusion carries through to the HTSUS. See HQ 963158. However, articles of utility were not excluded if the artistic character became “so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist.” Id citing United States v. Baumgarten & Co., 9 Ct. Cust. 321, T.D. 32052 (1911). Moreover, “the form of a case indeed has been used from ancient times as a medium for the finest artistic productions and in many such works the utilitarian character of the article is wholly lost in its artistic character.” Id at 324. The Court in T.D. Downing Co. v. United States, 66 Cust. Ct. 63, 68 (Cust. Ct. 1971) also had the opportunity to distinguish works of art from articles of utility where elements of both may be present when it stated, “Where the utilitarian purpose is clearly subordinate or nonexistent, sculptured articles, although in the form of cases or urns, have been held classifiable as works of art.” As was the case there, is the case here: the Murano vases are designed such that their artistic character supersedes the utilitarian nature. See HQ 966363, citing HQ 963158 (“articles of utility were not excluded if the artistic character became ‘so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist.” citing United States v. Olivotti & Co., supra).
Note 3 to chapter 97 and the EN to 97.03 exclude mass-produced reproductions, even if these articles are designed or created by artists. Therefore, CBP must determine whether the subject merchandise is mass-produced. A tariff term that is not defined in the HTSUS is construed in accordance with its common or commercial meaning. See Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). The Courts and CBP may determine the common and commercial meaning by consulting dictionaries, lexicons, scientific authorities and other reliable sources. See C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Oxford English Dictionary defines “mass-produce” as, “1.To produce (an article) in large quantities by an automated process; to manufacture in bulk.” "mass-produce, v." OED Online. Oxford University Press, June 2014. Web. 11 June 2014. The relevant definition in this context for “commercial” is “1. Engaged in commerce; trading.” OED Online. Oxford University Press, June 2014. Web. 11 June 2014.
As it applies in the instant case, Art & Coin submitted 112 copies of certification paperwork received from Art Glass Studio regarding each individual piece of the subject merchandise. Each individual certificate is for the export of contemporary art to the United States issued by the Italian Export Office. The certificates list each piece’s description, model number, title and dimensions. Each bears an original signature of Afro Celotto and is date stamped in Venice. Photos of each object show the 112 vases at issue are not identical to one another. They are unique, there are no duplicates among the 112 items. They vary in design, style, color scheme, and dimensions. This indicates they were not manufactured in large quantities by an automated process. Thus, the glass articles are not mass-produced, or excluded pursuant to Note 3 to Section XXI. As such, neither are they the first twelve castings, replicas or reproductions, provided for in Additional U.S. Note 1. These facts are distinguishable from HQ 966363. There CBP held that imports of 400 vases on one invoice, and 556 vases on a second invoice, were mass-produced reproductions of a commercial nature and therefore excluded from heading 9703, HTSUS, based on the fact that the artist’s website indicated unlimited quantities of each vase were available. In that case the available quantities far exceeded the 12 article standard of Additional U.S. Note 1 to Chapter 97, HTSUS.
Customs Regulations 19 C.F.R. §10.48 states that to import goods duty-free under heading 9703, HTSUS, the importer or the artist must satisfy the requirements contained therein, unless Customs is satisfied otherwise. CBP regulations permit the Port Director to use discretion in allowing art to enter the United States without such a declaration, or conversely, to seek more information, which is what CBP did here.
Additionally, § 10.112 of the Customs Regulations, (19 CFR §10.112) provides, in pertinent part:
Whenever a free entry or a reduced duty document, form or statement required to be filed in connection with the entry is not filed at the time of the entry or within the period for which a bond was filed for its production, but failure to file it was not due to willful negligence or fraudulent intent, such document, form, or statement may be filed at any time prior to liquidation of the entry or, if the entry was liquidated, before the liquidation becomes final.
The Court of Customs and Patent Appeals (“CCPA”) set forth the standard for willful negligence and fraudulent intent under 19 C.F.R. § 10.112 in Mattel, Inc. v. United States, 67 C.C.P.A. 74 (1980). Noting that the CBP Regulations do not provide a definition of willful negligence, the CCPA cited to F.W. Myers & Co. v. United States, 70 Cust. Ct. 202 (1973) in explaining how courts should interpret “willful negligence” under 19 C.F.R. § 10.112:
It is to be observed that included in the term “willful negligence” by the authorities cited, supra, are two elements: (1) Intent or a deliberate or conscious and intentional omission to perform some act or duty; (2) reckless disregard of the consequences of the act done or failure to act by the party.
Mattel, Inc., 67 C.C.P.A. at 77 (citing F.W. Myers & Co., 70 Cust. Ct. at 209). In addition, the CCPA in Mattel explained that the plaintiff, as the party seeking application of 19 C.F.R. § 10.112, bears “the burden of proving freedom from willful negligence,” which must be met by concrete evidence. Mattel, Inc., 67 C.C.P.A at 78; see also Gulfstream Aero. Corp. v. United States, 981 F. Supp. 654, 669 (CIT 1997). The courts in Mattel and Gulfstream analogized to federal tax law in explaining that to meet the statutory provision of willfulness, there must be some “bad purpose or evil motive.” Mattel, Inc., 67 C.C.P.A at 78; Gulfstream, 981 F. Supp. At 669. In proving freedom from willful negligence under 19 C.F.R. § 10.112, the CCPA in Mattel stated that “positive action demonstrating absence of willful negligence” meets the burden of proof. In Mattel, the CCPA held that the importer was entitled to a late filing under 19 C.F.R. § 10.112 of documents required by 19 C.F.R. § 10.1 for duty-free classification. In holding as such, the CCPA explained that the importer’s addition of a footnote to constructed cost submissions, which requested a judicial ruling on the applicability of a tariff heading, constituted positive action demonstrating an absence of willful negligence. Mattel, Inc., 67 C.C.P.A at 78-79.
Here, we find no evidence that the failure to submit with the entry documentation the various declarations and biographical information about Afro Celotto, as opposed to a single declaration in the wording of §10.48, demonstrates willful negligence or fraudulent intent as described in Mattel for purposes of §10.112. In response to CBP’s Request for Information, Art & Coin provided the information. While the entry could have been more expeditiously processed had the documents been provided with the entry documentation, this delay does not evidence “bad purpose or evil motive.” Further, a reading of all declarations submitted by Art Glass Studio and Art & Coin, along with certifications issued under other administrations export laws that the merchandise was made in Afro Celotto’s studio, constitute positive action demonstrating freedom from willful negligence for purposes of late filing under 19 C.F.R. § 10.112 of the single declaration required under 19 C.F.R. § 10.48 . However, if the Port Director prefers a single declaration, (s)he may obtain one from Art Glass Studio, on behalf of Afro Celotto, before final liquidation.
The goods are properly classified in heading 9703, HTSUS. This is consistent with previous CBP rulings classifying similar merchandise in heading 9703, HTSUS. See New York Ruling (NY) G87883, dated March 1, 2001 (classifying glass sculptures); NY K88985, dated September 8, 2004 (classifying hand-blown glass art from France); NY891475, dated October 28, 1993 (classifying Australian blown-glass sculptures); NY 866432, dated September 5, 1991 (classifying glass sculptures from the UK); NY 866676, dated September 10, 1991 (classifying glass sculptures from the UK); NY 855583, dated August 28, 1990 (classifying glass sculptures from Canada); NY 867794, dated October 22, 1991 (classifying glass sculptures); and N067880, dated July 29, 2009 (classifying Murano Italian hand-blown glass vases).
HOLDING:
By application of GRI 1, the subject merchandise is classified in heading 9703, HTSUS. Specifically it is provided for in subheading 9703.00.00, HTSUS, which provides for, “Original sculptures and statutory, in any material.” The column one, general rate of duty is free.
You are instructed to GRANT the protest.
In accordance with Sections IV and VI of the Customs Protest/Petition Processing Handbook you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter.
Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP Personnel, and to the public on the CBP home page on the world wide web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division