CLA-2 RR:CR:SM 562342 KSG
Port Director
U.S. Customs Service
112 West Stutsman
Pembina, North Dakota 58271
RE: Application for Further Review of Protest No. 3401-01-100031; subheading 9817.00.98; theatrical lighting equipment
Dear Director:
This is in reference to a Protest and Application for Further Review timely filed by Westsun Toronto, Inc., contesting the denial of the duty free exemption set forth at subheading 9817.00.98, of the Harmonized Tariff Schedule of the United States (“HTSUS”), to imported theatrical lighting equipment.
FACTS:
Westsun Toronto, Inc. is the importer of record in this case. Westsun leased theatrical lighting equipment to Dublin Worldwide Dance Productions. Dublin is a production company that put on a theatrical show titled "Spirit of the Dance" that toured for 18 weeks in 2000- 2001. Westsun provided eight employees to Dublin on contract to provide technical support.
The protestant has provided a copy of the lease agreement between it and Dublin. The agreement provides that the eight touring technicians supplied and paid by Westsun have the following responsibiliities:
1. Provide and prepare production equipment systems according to tour specifications and requirements.
2. Provide touring technical crew to fulfill the touring needs of the production.
3. Technical direction and stage management.
4. Arrange and supervise suppliers of tour accommodations, tour transportation of equipment and personnel, routing logistics and travel scheduling.
5. Liaise with performance venues and calculate performance schedules.
6. Provide updated technical rider and tour advancing of dates.
7. Maintain in good working order all production systems.
8. Review presenter contracts on behalf of Dublin Worldwide Dance Productions, Inc. for obvious technical discrepancies and recommend revisions or approval. Contracts shall be signed by the producer only.
ISSUE:
Whether the imported theatrical lighting equipment is eligible for duty-free treatment under subheading 9817.00.98, HTSUS.
LAW AND ANALYSIS:
By Presidential Proclamation 6763 of December 23, 1994, 60 Fed. Reg. 1097 at 1292, January 4, 1995, heading 9813.00.65, HTSUS, was deleted and subheading 9817.00.98, HTSUS was inserted in subchapter XVII of chapter 98. Subheading 9817.00.98 provides, as follows:
Theatrical scenery, properties and apparel brought into the United States by proprietors or managers of theatrical, ballet, opera or similar productions or exhibitions arriving from abroad for temporary use by them in such productions or exhibitions………………………………………Free
The precursor to subheading 9817.00.98 (the deleted heading 9813.00.65) was a temporary bond provision and had a three-year limitation. Subheading 9817.00.98, HTSUS, was originally proposed by a non-profit opera organization to simplify entries of this type by removing the bonding requirement.
Customs ruled on the applicability of subheading 9817.00.98, HTSUS, in Headquarters Ruling Letter ("HRL") 561472, dated July 21, 2000. In this ruling, Cirque du Soleil asked whether its scenery, costumes and properties imported for use in its theater shows were eligible for entry under subheading 9817.00.98, HTSUS. Customs concluded that the items imported must be directly used in a theatrical production and that Cirque du Soleil had to establish to the satisfaction of Customs at the port of entry that the goods were used temporarily in the U.S. Customs stated that Cirque du Soleil would qualify as a proprietor of a theatrical production.
In this case, the entry is being made by Westsun, which is not a theatrical company. The lighting equipment belongs to Westsun and was leased to Dublin for temporary use by them in a dance production. Subheading 9817.00.98, HTSUS, requires the properties to be "brought into the United States by proprietors or managers of theatrical, ballet, opera or similar productions." Westsun is not the proprietor or manager of the dance production involved in this case. Accordingly, the lighting equipment is not eligible for classification in subheading 9817.00.98, HTSUS.
HOLDING:
The imported theatrical lighting equipment is not eligible for duty-free treatment under subheading 9817.00.98, HTSUS. Accordingly, you should deny this protest.
In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision should be attached to Customs Form 19, Notice of Action, and 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 the decision must be accomplished prior to mailing of this 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, the Freedom of Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division