Protest 5201-94-100402; Florida Splendid China; Replicas of monuments, statues, and events

HQ 960924 September 15, 1999 CLA2 RR:CR:GC 960924 PH CATEGORY: Classification TARIFF NO.: 3926.40.00; 4418.10.00; 4418.20.80; 4421.90.95; 6802.91.15; 6802.93.00; 6802.99.00; 6809.90.00; 6810.11.00; 6810.91.00; 6810.99.00; 6905.10.00; 6913.90.10; 6913.90.20; 6913.90.30; 6913.90.50; 7013.90.10 Port Director U.S. Customs Service 1500 Port Boulevard Miami, Florida 33132 RE: Protest 5201-94-100402; Florida Splendid China; Replicas of monuments, statues, and events Dear Port Director: This is in response to protest 520194100402, which pertains to the tariff classification of replicas of various Chinese works of art or historical locations under the Harmonized Tariff Schedule of the United States (HTSUS). Pictorial representations were submitted for our examination. Consideration was also given counsel’s supplemental submission dated July 8, 1997. FACTS: Eight entries, dated June 24, and October 23, 1992, January 19, February 17, March 3 (two entries), and April 1 (two entries), 1993, are included in the protest. The invoices for the entries describe the merchandise as follows (the parenthetical alpha-numeric indicators identify the sculptors and material/description, as indicated following the list): Date of Entry (Entry #) Invoice Description June 24, 1992 (***86-2) Buddha Stone Sculpture in Dazu (8 & 9; a), Leshan Great Buddha Statue (8 & 9; a), Little Stone Pieces for Mini Great Wall. October 23, 1992 (***97-4) Mausoleum of Khan (1; b), Miaoying Temple (c), Imperial Palace (1 & 2; d), Summer Palace (e), West Lake (f), Fishman’s Garden (g), Terra Cotta Warriors and Horses (h), Warrior’s Carriage (h), Windows and Doors in Suzhou Street (i). January 19, 1993 (***22-1) Hakkah House (j), Terra Cotta Warriors (h). February 17, 1993 (***18-7) Great Wall (k), Shang Hai Guang (1; l), Jin Gang Bao Zuo Pagoda (2; m), Jin Ancestral Temple (2; n), Foshan Ancestral Temple (1; e), Yellow Crane Tower (1; o), Yueyang Pavilion (1; p), Zhen Hai Tower (3; q), Tengwang Tower (1; r), Zhaozhou Bridge (2; m), Lugou Bridge (s), Mogao Grottoes (6; e), Mausoleum of Genghis Khan (1; b), Bouyei Village (1; p), Dong Village (1; t), Miao Village (1; u), Windows in Suzhou Street (i). March 3, 1993 (***94-8) Jiayuguang (1; k), Midair Temple (2; v), Dai Village (2 & 4; w), Joyful Nadam Fair of Inner Mongolia (5; x), Scenery of Lijiang River (6; y), Memorial Temple of Zhuge Liang (1; z), Manfeilong Pagoda (2; m), Dr. Sun Yat Sen’s Mausoleum (2; aa), Three Ancient Pagoda (2; bb). March 3, 1993 (***95-5) Big Wild Goose Pagoda (3; cc), Three Ancient Pagoda (2; bb), Xiang Fei’s Tomb (1; dd), Ancient Star-Observatory (3; cc). April 1, 1993 (***06-8) Tengwang Tower (1;4). April 1, 1993 (***07-6) Bai Village (7; ee), Dai Village (2; w), Memorial Temple of Zhuge Liang (1; z), Pagoda on top of Elephant Mountain (unknown), Pavilion in Dr. Sun Yat Sen’s Mausoleum (2; aa), Jingzhen Octagonal Pavilion (ff), Mini Bricks (cc), Figuring and Accessories (x). Person listed by the protestant as the artist: 1 = Cheng Wanli; 2= Zhou Guojun; 3 = Lui Guanhua; 4 = Guizhou Institute; 5 = Mao Feng Xiang; 6 = Zhong Weisheng; 7 = Guan Hwa; 8 = Shaozhen Zhang; 9 = Yih Bor Ren. Material and/or description of the articles: a = replica statuary cast from plaster of coarse red sand; b = wooden structure and walls with roof of mosaic tiles; c = surface panels of heated resin; d = prefabricated compressed cement walls; e = Bakelite boards and pressed cement; f = marble and stone; g = plaster coated walls with clay roofs; h = clay; i = wood doors and/or windows; j = plaster coated walls with wood roof frame and eaves; k = small or mini stone bricks; l = concrete; m = marble; n = white marble, porcelain tiles and resin; o = Bakelite boards with ceramic roofing tile; p = pressed cement boards and Chinese hardwood; q = cement board and hardwood with clay tile roof; r = pressed cement boards and Bakelite boards with glazed-like roof; s = marble and concrete; t = Bakelite boards with roof of concrete pieces; u = wood structure treated with epoxy; v = wood and brick on inlaid stone wall; w = fiberglass cloth applied to wood structure with clay tiles; x = ceramics; y = steel bars covered with concrete and fiberglass; z = pressed cement board and Bakelite board with clay roof tiles; aa = white granite with ceramic tile roof; bb = white marble; cc = small, miniature, or tiny bricks; dd = fired ceramic tiles on a wood base; ee = wood with clay roof; ff = cement with roof of an amalgam of cement and plastic. With the exception of the Little Stone Pieces for Mini Great Wall in the June 24, 1992, entry, all of the merchandise was entered as original sculptures and statuary in subheading 9703.00.00, HTSUS. The stone pieces were entered as other articles of cement, or concrete or of artificial stone in subheading 6810.19.50, HTSUS. Except as noted below, liquidation of each of the entries was on April 29, 1994. With the exception of the February 17, 1993, entry, liquidation of each entry was properly extended and notice of the extension was provided to the importer and surety. In the case of the February 17, 1993, entry, the entry was initially liquidated on February 11, 1994, under the "auto liq" procedures, and was reliquidated under 19 U.S.C. 1501 within 90 days of the initial liquidation, on April 29, 1994. Through counsel, the importer filed this protest on July 25, 1994. Citing Headquarters Ruling (HQ) 950298 dated December 26, 1991, the court cases cited therein, and the Harmonized Commodity Description And Coding System Explanatory Notes (ENs) the protestant contends that the articles should be classified as free fine art, as original sculptures and statuary in any material of heading 9703, HTSUS. According to the protestant, the articles are not products of the industrial or decorative arts and some are original in concept and design, but even in the case of the replicas, the originality of the artist is evident in the selection and use of materials and creativity utilized in the creative process. They are neither working models or usable objects of adornment, nor were they mass produced or would they be likely to be duplicated at any commercial level. The protestant provides resumes of the artists and sculptors involved in the production of the articles. Alternatively, or in the cases where a specific article may not qualify for classification in heading 9703, HTSUS, the protestant contends that the articles qualify as a collection of historical interest of heading 9705, HTSUS. In regard to this contention, the protestant cites EN 97.05 for the proposition that goods produced as a commercial undertaking to commemorate, celebrate, or illustrate or depict an event or other matter may be classified in heading 9705 "[if] the goods themselves have subsequently attained that interest by reason of their age or rarity." The protestant contends that this criterion is met because the articles were constructed using the same construction techniques and, to the extent possible, materials that were employed in constructing the original articles. Furthermore, the cost of the articles (in excess of $2,000,000 for the Imperial Palace display, more than $300,000 for several others, and more than $100,000 for most displays) "remove[s] these articles from use in a typical commercial undertaking." The protestant compares the display as a whole to conventional museums, noting that "[t]he outdoor museum is a commercial venture; however the ‘attractions’ are not traditional amusements[;] [i]nstead, the displays serve the same functions as exhibits in an indoor historical museum." The protestant states that the only other outdoor museum featuring similar exhibits is found in China. As a second alternative, the protestant contends that, if the articles are not classifiable in heading 9703 or 9705, HTSUS, they should be classified under the provision which gives them their essential character. The protestant contends that it is the materials used for the exterior surfaces or, in certain cases, the roofs of the articles that provides the essential character. ISSUE: Are the replicas of Chinese works of art or historical locations making up "Florida Splendid China" classifiable as original sculptures and statuary of heading 9703, HTSUS; collections of historical interest of heading 9705, HTSUS; or, if not, what is the proper tariff classification? LAW AND ANALYSIS: Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)). In regard to protestant’s contention that the protested entries should be deemed liquidated as entered pursuant to 19 U.S.C. 1504, according to Customs records liquidation for each of the protested entries was properly extended and notice of that extension was sent to the importer of record and surety (except for the February 17, 1993, entry which was initially liquidated within 1 year of entry and then reliquidated pursuant to 19 U.S.C. 1501 within 90 days of the initial liquidation). The protest is denied in regard to this issue (see International Cargo & Surety Insurance Co. v. United States, 15 CIT 541, 779 F. Supp. 174 (1991); St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763 (Fed. Cir. (T) 1993); and Intercargo Insurance Co. v. United States, 83 F.3d 391 (Fed. Cir. (T) 1996), cert. den. 519 U.S. 1108 (1997)). Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states, in part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6, taken in order. Pursuant to GRI 2(a), any reference in a heading to an article shall be taken to include a reference to that article entered unassembled or disassembled. Under GRI 2(b), any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances, any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance, and the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Pursuant to GRI 3(b), goods which are prima facie classifiable under two or more headings, and which are mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, shall be classified as if they consisted of the material or component which gives them their essential character. The ENs constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 8980, published in the Federal Register August 23, 1989 (54 F.R. 35127, 35128). The HTSUS headings and subheadings under consideration are as follows (entry was in both 1992 and 1993; the tariff provisions below are from 1993, and are the same as in 1992 except for subheading 4418.20, which in 1992 was not subdivided between french doors (subheading 4418.20.40) and other (subheading 4418.20.80)): 3925 Builders’ ware of plastics, not elsewhere specified or included: 3925.90.00 Other 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.40.00 Statuettes and other ornamental articles 4418 Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes: 4418.10.00 Windows, French-windows and their frames 4418.20. Doors and their frames and thresholds: 4418.20.80 Other 4418.90 Other: 4418.90.40 Other 4421 Other articles of wood: 4421.90 Other: 4421.90.95 Other 6802 Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially colored granules, chippings and powder, of natural stone (including slate): Other: 6802.91 Marble, travertine and alabaster: Marble: 6802.91.05 Slabs 6802.91.15 Other 6802.93.00 Granite 6802.99.00 Other stone 6809 Articles of plaster or of compositions based on plaster: 6809.90.00 Other articles 6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced: Tiles, flagstones, bricks and similar articles: 6810.11.00 Building blocks and bricks 6810.19 Other: 6810.19.50 Other Other articles: 6810.91.00 Prefabricated structural components for building or civil engineering 6810.99.00 Other 6905 Roofing tiles, chimney pots, cowls, chimney liners, architectural ornaments and other ceramic constructional goods: 6905.10.00 Roofing tiles 6905.90.00 Other 6913 Statuettes and other ornamental ceramic articles: 6913.90 Other: 6913.90.10 Statues, statuettes and handmade flowers, valued over $2.50 each and produced by professional sculptors or directly from molds made from original models produced by professional sculptors Other: 6913.90.20 Of ceramic tile 6913.90.30 Of earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze, and mottled, streaked or solidly colored brown to black with metallic oxide or salt 6913.90.50 Other 7019 Glass fibers (including glass wool) and articles thereof (for example, yarn, woven fabrics): 7019.90 Other: 7019.90.10 Woven 9703 Original sculptures and statuary, in any material 9705 Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest Note 4(a), Chapter 97, HTSUS, provides that "[s]ubject to notes 1 through 3 above, articles of this chapter are to be classified in this chapter and not in any other chapter of the tariff schedule." Accordingly, we will first consider application of headings 9703 and 9705, HTSUS. Note 3, Chapter 97, HTSUS, provides that "[h]eading 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, HTSUS, provides that "[h]eading 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 ...." General EN, Chapter 97, states "[t]his Chapter covers: (A) [c]ertain works of art ... original sculptures and statuary (heading 97.03)." EN 97.03 states, in part: This heading covers original sculptures and statuary, ancient or modern. They may be found in any material (stone, reconstituted stone, terra-cotta, wood, ivory, metal, wax, etc.), in the round, in relief or intaglio (statues, busts, figurines, groups, representations of animals, etc., including reliefs for architectural purposes). * * * The heading therefore covers not only the original models made by the sculptor but also copies and reproductions of those models made by the second process described above, whether these are made by the sculptor himself or by another artist. 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 mache, etc. With the exceptions of articles of adornment classifiable in heading 71.16 or 71.17, all these articles are classified according to their constituent material (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.). There have been no Court decisions interpreting this HTSUS provision, although there are many such decisions interpreting the corresponding provision in earlier tariff schedules, the Tariff Schedules of the United States (TSUS) and its predecessors. The legislative history of the law implementing the HTSUS (Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418, §1201, August 23, 1988, 102 Stat. 1107, 1147) states that: [D]ecisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. [H.R. Rep. No. 576, 100th Cong., 2d Sess. 549-550 (1988); 1988 U.S.C.C.A.N. 1547, 1582-1583; see also Hemscheidt Corp. v. United States, 18 CIT 641, 858 F. Supp. 223 (1994), affirmed 72 F.3d 868 (Fed, Cir. 1995); Hewlett-Packard Co. v. United States, CIT Slip Op. 98-76 (1998), affirmed, CAFC Slip Op. 98-1537, in which the CAFC stated: "Where the text of a tariff provision has undergone only minor changes from the TSUS to the HTSUS, the high values of uniformity and predictability  not to mention the merits of honoring Congress' decision to retain prior policy  counsel courts to credit prior decisions interpreting the TSUS provision."] The nomenclature in heading 9703, "[o]riginal sculptures or statuary" is unchanged from predecessor tariffs (item 765.15, TSUS; paragraph 1807(a), Tariff Act of 1930, as amended), and the modifier "in any material" and applicable legal notes represent only "minor changes" (see Hewlett-Packard, supra) from the predecessor provisions. Accordingly, decisions under the TSUS and previous tariffs in regard to heading 9703 are properly instructive in the interpretation of heading 9703. In H.H. Elder & Co, Forest Lawn Co. v. United States, 64 Cust. Ct. 182, C.D. 3979 (1970), the Customs Court, Third Division, determined that a bust of George Washington, sculpted by a professional sculptor with instructions to produce a bust that would look like the one in the Old North Church in Boston, Massachusetts, was not classifiable as "original sculpture or statuary" of item 765.15, TSUS (emphasis added), but was classifiable as "[s]tone statutory and sculptures not specially provided for, the professional productions of sculptors only" of item 513.51, TSUS. The Court adopted as the test of originality a test used in interpreting paragraph 1807 of the Tariff Act of 1930, stating: The test of originality which is laid down in the cited cases is whether the artist who executed the sculpture or statuary exercised his own esthetic imagination and artistic conception in creating the work. ... [64 Cust. Ct. at 184, quoting Forest Lawn Co. and H.H. Elder & Co. v. United States, 41 Cust. Ct. 411, 412, Abstract 62476 (1958)] The Court went on to state: Since there is also no proof that the bust of George Washington in Old North Church, Boston, is itself an original sculpture and work of art in the tradition of the free fine arts in that medium, there is no basis upon which we can find that the imported bust is a reproduction of an original sculpture [citation omitted], let alone a reproduction of a work of art, made from the sculptor’s original work or model, as the law provides. [64 Cust. Ct. at 184-185] See also, H.H. Elde