CLA-2 CO:R:C:F 955753 K
Ms. Jill Cotter
Assistant Associate Dean
The City College of
The City University of New York
Convent Avenue at 138th Street
New York, New York 10031
RE: Rene Chamizo; Sculptures and Straw Baskets
Dear Ms. Cotter:
In your letter of December 27, 1993, we presume that you are
asking us to rule that certain articles created by Rene Chamizo,
a Cuban artist, qualifies for free duty as original sculptures, in
subheading 9703.00.00, Harmonized Tariff Schedule of the United
States (HTSUS), and that we convert a temporary importation under
bond covering the articles to a consumption entry. Our response
follows.
FACTS:
You submitted background information for Mr. Chamizo and some
photos of his works. We will retain these documents in our file
unless you request their return. At our request, you submitted a
copy of the importation document dated October 25, 1991, and a copy
of an import license dated October 31, 1991, issued by the Office
of Foreign Assets Control.
From the documentation submitted, we conclude that
approximately 80 articles were imported free of duty under a
temporary importation bond, in subheading 9813.00.70, HTSUS.
Generally, the articles consist of straw baskets, straw jars,
mobiles, and jewelry.
ISSUE:
The issue is whether the straw articles described above are
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sculptured articles classified in subheading 9703.00.00, HTSUS,
and if they are, can an entry covering the articles imported
temporary under bond be converted to a consumption entry.
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.
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Most of the articles in your photos consist of weaved straw
baskets not created by the two processes described in the EN for
creating sculptured articles. Further, a sculpture must be an
original, that is, it must be original in conception, design, and
execution. The law permits the free entry of the original
sculpture plus the first 12 castings, replicas or reproductions.
Notwithstanding the lack of information necessary for proof of
originality and the number of the additions, it is our opinion that
weaved straw baskets do not qualify as sculptures for purposes of
subheading 9703.00.00, HTSUS. The EN also excludes from subheading
9703.00.00, HTSUS, articles of personal adornment such as jewelry.
Subheading 9813.00.70, HTSUS, provides that works of the free
fine arts, engravings, photographic pictures and philosophical and
scientific apparatus brought into the United States by professional
artists, lecturers or scientists arriving from abroad for use by
them for exhibition and in illustration, promotion and
encouragement of art, science or industry in the United States, may
be entered free, under bond as prescribed in U.S. note 1,
subchapter XIII. The U.S. note prohibits the importation of the
articles for sale or for sale on approval, and requires exportation
within one year from the date of importation. The time period may
be extended upon application but the time period shall not exceed
a total of three years.
The articles in question were imported under subheading
9813.00.70, HTSUS. The Customs Service has no authority to convert
an entry under a Temporary Importation Bond (TIB) covering
merchandise which has been entered to a consumption entry after the
TIB has been accepted by Customs. You orally indicated that
extensions have been obtained and will run out in November, 1994.
Failure to export the articles under the terms of the bond may
subject you to a claim for liquidated damages. See section 172.1
of the Customs Regulations (19 C.F.R. 172.1) which states as
follows;
When there is a failure to meet the conditions of any
bond posted with Customs, the principal shall be notified
in writing of any liability for liquidated damages
incurred by him and a demand shall be made for payment.
The sureties on such bond shall also be advised in
writing, at the same time as the principal, of the
liability for liquidated damages incurred by the
principal.
Generally, the claim for liquidated damages is two times the
duties that would have been due had the merchandise not been
imported under a TIB entry.
Further, the specific license issued by the Office of Foreign
Assets Control indicates that it was due to expire on
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November 30, 1991. Our response to you does not concern whatever
appropriate action that may be taken by that office for the failure
to export the articles.
For future similar importations, you have been advised of the
possibility of the applicability of subheading 9810.00.20, HTSUS.
Of course, you would have to comply with the regulatory
requirements, if any, of the Office of Foreign Assets Control.
HOLDING:
Weaved straw baskets and weaved straw jars are not sculptured
articles entitled to free entry as original sculptures and
statuary, in any material, classified in subheading 9703.00.00,
HTSUS.
Customs has no authority to allow an importer to convert a
TIB entry under which merchandise has been entered to a consumption
entry after the TIB entry has been accepted by Customs.
Sincerely,
John Durant, Director
Commercial Rulings Division