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HQ 955863




January 23, 1995

CLA-2 CO:R:C:F 955863 K

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000

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


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