CLA-2: RR:CTF:TCM H021866 KSH
Port Director
U.S. Customs and Border Protection
Protest & Control
1100 Raymond Boulevard
Suite 402
Newark, NJ 07102
RE: Application for Further Review of Protest 4601-07-102033
Dear Port Director: This is in reply to your correspondence, dated December 27, 2007, forwarding Application for Further Review of Protest (AFR) 4601-07-102033, filed by counsel on behalf of its client, Hedleys Inc.
FACTS:
The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of a prefabricated house under heading 9406 of the Harmonized Tariff Schedule of the United States (HTSUS).
On March 23, 2007, protestant entered the merchandise subject to this protest in heading 9703, HTSUS, which provides for original sculptures and statuary. The merchandise was liquidated in heading 9406, HTSUS, which provides for other prefabricated buildings.
On September 20, 2007, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in heading 9406, HTSUS. Protestant’s AFR request was approved. The protest was timely filed. See 19 U.S.C. 1514(c)(3).
Protestant now claims that the merchandise is classified in heading 9705, HTSUS, which provides for collectors’ pieces of historical interest. Protestant alleges that the protest involves questions of law and fact that have not been ruled upon by the Commissioner of Customs or by the Customs courts. Further review is warranted pursuant to 19 CFR §§174.24(c) and 174.25.
The merchandise at issue is identified as the “Maison Tropicale.” It is a structure constructed from sheet steel and aluminum. It was designed by the French architect Jean Prouvé in 1949 and produced in 1951. The Maison Tropicale was created in response to a French government-sponsored competition beginning in 1947 to develop ideas for low cost housing for the French colonies. It measures 59 feet by 32 feet by 16 feet tall and features fork-shaped portico supports of bent steel and an outer shell of aluminum. The walls are made of a series of sheet-metal panels that slide into different positions on overhead tracks. The panels feature 27 portholes of blue tinted glass. Maison Tropicale was built in sections which were shipped from France to the Congo to be assembled on site. Only three Maison Tropicales, of slight varying design, were constructed as it proved to be more expensive than what could be built locally and it did not appeal aesthetically to its intended constituency.
The Maison Tropicale was restored after years of abandonment and neglect. It was imported for the express purpose of being put up for sale at auction.
ISSUE:
Whether the Maison Tropicale is classified in heading 9406, HTSUS, as a prefabricated house or heading 9705, HTSUS, as a collectors’ piece of historical interest.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Note 4(a) to chapter 97, HTSUS, provides that, “subject 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.” Consequently, classification in heading 9705, HTSUS, must be considered before resorting to heading 9406, HTSUS.
The HTSUS provisions at issue are:
9406 Prefabricated buildings:
9705 Collections and collectors' pieces of zoological, botanical,
mineralogical, anatomical, historical, archeological, paleontological,
ethnographic or numismatic interest:
The ENs for heading 9705, in pertinent part, provide the following:
These articles are very often of little intrinsic value but derive their interest from their rarity, their grouping or their presentation. The heading includes:
* * * *
(B) Collections and collectors’ pieces of historical, ethnographic, paleontological or archaeological interest, for example:
Articles being the material remains of human activity suitable for the study of the activities of earlier generations, such as: mummies, sarcophagi, weapons, objects of worship, articles of apparel, articles which have belonged to famous persons.
Articles having a bearing on the study of the activities, manners, customs and characteristics of contemporary primitive peoples, for example, tools, weapons or objects of worship.
Geological specimens for the study of fossils (extinct organisms which have left their remains or imprints in geological strata), whether animal or vegetable.
* * * *
Goods produced as a commercial undertaking to commemorate,
celebrate, illustrate or depict an event or any other matter, whether or not production is limited in quantity or circulation, do not fall in this heading as collections or collectors’ pieces of historical or numismatic interest unless the goods themselves have subsequently attained that interest by reason of their age or rarity.
As the ENs indicate, heading 9705 covers a narrow group of products.
While the rarity, grouping or presentation of an article is considered in the classification analysis for heading 9705, HTSUS, the ENs indicate that an article’s value is not controlling in determining classification there.
Protestant claims that the Maison Tropicale should be considered a collectors’ piece of historical interest, classifiable under heading 9705, HTSUS, as it is: a) historically significant as one of the first examples of prefabricated structures and it was commissioned as a result of winning a prestigious design competition; (b) had a long term effect influencing future designers and architects and pioneering the use of prefabricated structures; (c) associated with Prouvé thereby markedly increasing its value and making it a collectible; and (d) restored to its original condition and its sister prototype is on display at a Museum.
Protestant cites to Headquarters Ruling Letter (NY) 960518, dated May 30, 1997, in which household goods previously owned by the Duke and Duchess of Windsor were classified in heading 9705, HTSUS, and to New York Ruling Letter (NY) L83265, dated March 14, 2005, in which four Ferraris were classified in heading 9705, HTSUS, for support of its claim that the Maison Tropicale is both rare and of historical interest.
Jean Prouvé’s reputation as a renowned architect is well documented and established through the many articles attached as submissions to the protest. The influence of Mr. Prouvé in the development of nomadic utilitarian architecture as typified by the Maison Tropicale is equally well demonstrated. However, Maison Tropical does not derive its value or historical interest from its limited production nor is it identified with a particular historical event.
In HQ 085851, dated June 1, 1990, we stated "that the phrase ‘historical interest’ as specified in chapter 9705, HTSUS, is meant to include items that were in use during a specific historical period and are valuable for that reason, i.e., an actual uniform worn by a soldier during the Napoleonic wars, a cannon used during the United States Revolutionary war, etc." Specifically, under heading 9705, there must be a connection established between the article and history. In both rulings relied on by the protestant, the merchandise at issue was associated with a particular historical event or was in use during a specific historical period (i.e., automobiles which won world renowned auto races and goods utilized after Edward VIII’s abdication from the throne).
Protestant claims that the Maison Tropical is of historical interest because it was designed and produced, though not owned by, a participant in the historical evolution of prefabricated structures, not because of any identification with a specific historical event nor due to its limited production. Protestant’s documentation does not support the claim that the evolution of prefabricated design qualifies as an historical event or establishes an "historic interest" under heading 9705, HTSUS.
In HQ 089226, dated July 29, 1991, CBP held that the unique design of a one of a kind, 18-carat gold watch, valued at $4,975,000.00, did not qualify it as an article of "historical interest" under heading 9705, HTSUS. Although the watch took 5 years to design, and four years to complete, and was considered technologically one the world’s most complicated watches, these factors did not establish an "historical interest."
CBP also determined that uniquely designed cars, only 50 of which had ever been produced, were not sufficiently rare or technologically significant to establish an "historical interest" under heading 9705. Without evidence that each car had been owned by a famous person and/or involved in an historically significant event (HQ 961297, dated November 5, 1998), they also did not meet the description of an "historical event" under the tariff.
Moreover, protestant has also not demonstrated that Maison Tropicale is put up in collections, or for use in a particular exhibition. On the contrary, Maison Tropicale was sold commercially and will be ultimately retained for private use.
Heading 9406, HTSUS, provides for “Prefabricated buildings.” The EN to heading 9406, HTSUS, provides in relevant part:
This heading covers prefabricated buildings, also known as "industrialised buildings ", of all materials.
These buildings, which can be designed for a variety of uses, such as housing, worksite accommodation, offices, schools, shops, sheds, garages and greenhouses, are generally presented in the form of:
- complete buildings, fully assembled, ready for use;
- complete buildings, unassembled;
- incomplete buildings, whether or not assembled, having the essential character of prefabricated buildings.
In the case of buildings presented unassembled, the necessary elements may be presented partially assembled (for example, walls, trusses) or cut to size (beams, joists, in particular) or, in some cases, in indeterminate or random lengths for cutting on the site (sills, insulation, etc.).
The buildings of this heading may or may not be equipped. However, only built in equipment normally supplied is to be classified with the buildings. This includes electrical fittings (wiring, sockets, switches, circuit breakers, bells, etc.), heating and air conditioning equipment (boilers, radiators, air conditioners, etc.), sanitary equipment (baths, showers, water heaters, etc.), kitchen equipment (sinks, hoods, cookers, etc.) and items of furniture which are built in or designed to be built in (cupboards, etc.).
The Maison Tropicale is a complete unequipped prefabricated building
designed for housing. It is eo nomine provided for in heading 9406, HTSUS. HOLDING:
Protest number 4601-07-102033 is denied. By application of GRI 1, the Maison Tropical is classified in heading 9406, HTSUS. It is provided for in subheading 9406.00.8030, HTSUS, which provides for: “Prefabricated buildings: Other: Of metal: Other.” The column one, general rate of duty is 2.9% ad valorem.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 reliquidation of the entry 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