CLA–2 OT:RR:CTF:TCM H136955 CKG
RE: Internal Advice; Importation of a Statue of Our Lady of Guadalupe
Port Director
U.S. Customs and Border Protection
Port of Chicago
9915 Bryn Mawr
Rosemont, IL 60018
ATTN: Jeremy Baxter, Supervisory Import Specialist
Dear Port Director,
This is in regard to a request for Internal Advice, forwarded to this office on November 26, 2012, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a statue of Our Lady of Guadalupe (entry # 101-
8229060-00).
FACTS:
The merchandise at issue is a wooden statue of Our Lady of Guadalupe, carved by the art studio Ars Sacra 1875 Ferdinand Stuflesser, a studio founded and run by the Stuflesser family, and devoted to church interiors, statues, sculptures and restorations. The importer is Meyer Vogelpohl, also a company specializing in church/religious items. According to the importer, the statue was custom made by the studio to fulfill an order placed with Meyer-Vogelpohl by the Holy Spirit Church, in Sacramento, California, and is to be shipped directly to the Holy Spirit Church.
The importer’s submission offers conflicting descriptions of the merchandise; the purchase order, which lists Ferdinand Stuflesser as the vendor and the consignee as Holy Spirit Church, describes the merchandise as “Full Rd Handcarved 4’ OL of Guadalupe statue: statue to be fullround style - colored as attached picture - overall height 48” to top of ray - Mary is 39” tall - gilded rays on panel.” The invoice, on the other hand, makes no mention of the Holy Spirit Church, and describes the merchandise as follows: “Our Lady of Guadalupe, ¾ relief as per our picture with angel on the base, standing on a base with rays painted – gilded on a panel. Overall height with rays 4’, O.L. of 39’ richly decorated as per your picture.” The two descriptions do not appear to reference the same object, as one statue is described as full round, and the other as a ¾ relief.
The pictures submitted with the request for Internal Advice (included below), detailing the creation of the statue, also represent two different articles: the first set of pictures (e.g., Figure 1) depict a fullround statue with wings, a shield and a sword, and a second set of pictures (e.g., Figure 2) depict a statue of Our Lady of Guadalupe with a flat back (i.e., the statue is only 3/4 round), and a panel depicting gilded rays attached to the back. The second set of pictures most closely conforms to the product description found in the email correspondence between Meyer Vogelpohl and the art studio (in which a representative of Meyer Vogelpohl requests the addition of a base and gilded panel to the statue), as well as the invoice and purchase order. It also closely resembles the classic image of Our Lady of Guadalupe (the carving in the first set of pictures does not resemble any known image of Our Lady of Guadalupe and appears to represent another religious figure entirely). We therefore presume that the second set of photos represents the actual merchandise at issue.
Figure 1 Figure 2
ISSUE:
Whether the instant statue is classified as a statuette or other ornament of wood, of heading 4420, HTSUS, as an original sculpture or statuary of heading 9703, HTSUS, or as an article for use by a religious institution (subheading 9810.00.25).
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs, 2 through 6, may then be applied in order. GRI 6, HTSUS, requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. The GRI's apply in the same manner when comparing subheadings within a heading.
The HTSUS provisions at issue are as follows:
4420: Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar
articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture
not falling within chapter 94:
4420.10.00: Statuettes and other ornaments, of wood
* * * *
9703.00.00: Original sculptures and statuary, in any material.
9810.00: Articles imported for the use of an institution organized and operated for religious
purposes
9810.00.25: Altars, pulpits, communion tables, baptismal fonts, shrines, mosaics,
iconostases, or parts, appurtenances or adjuncts of any of the foregoing, whether to be physically joined thereto or not, and statuary (except granite or marble cemetery headstones, granite or marble grave markers and granite or marble feature memorials, and except casts of plaster of Paris, or of compositions of paper or papier-mâché)…
* * * *
Note 1 to Chapter 44 provides, in pertinent part, as follows:
This chapter does not cover:
(r) Articles of chapter 97 (for example, works of art).
* * * *
Note 3 to Chapter 97 provides as follows:
Heading 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.
* * * *
19 CFR 10.48 provides as follows:
§ 10.48 Engravings, sculptures, etc.
(a) Invoices covering works of art claimed to be free of duty under subheadings 9702.00.00 and 9703.00.00, HTSUS, shall show whether they are originals, replicas, reproductions, or copies, and also the name of the artist who produced them, unless upon examination the Customs officer is satisfied that such statement is not necessary to a proper determination of the facts.
(b) The following evidence shall be filed in connection with the entry: A declaration in the following form by the artist who produced the article, or by the seller, shipper or importer, showing whether it is original, or in the case of sculpture, the original work or model, or one of the first twelve castings, replicas, or reproductions made from the original work or model; and in the case of etchings, engravings, woodcuts, lithographs, or prints made by other hand-transfer processes, that they were printed by hand from hand-etched, hand-drawn, or hand-engraved plates, stones, or blocks:
I, ----------, do hereby declare that I am the producer, seller, shipper or importer of certain works of art, namely ---------- covered by the annexed invoice dated ----------; that any sculptures or statuary included in that invoice are the original works or models or one of the first twelve castings, replicas, or reproductions made from the sculptor's original work or model; and that any etchings, engravings, woodcuts, lithographs, or prints made by other hand-transfer processes included in that invoice were printed by hand from hand-etched, hand-drawn, or hand-engraved plates, stones, or blocks.
(c) The port director may waive the declaration requirement set forth in paragraph (b) of this section.
* * * *
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (“ENs”) constitute the official interpretation of the HS. While not legally binding or
dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of the HTSUS headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 44.20 provides, in pertinent part, as follows:
This heading covers panels of wood marquetry and inlaid wood, including those partly of material other than wood.
The articles of this heading may be made of ordinary wood or of particle board or similar board, fibreboard, laminated wood or densified wood (see Note 3 to this Chapter).
It also covers a wide variety of articles of wood (including those of wood marquetry or inlaid wood), generally of careful manufacture and good finish, such as : small articles of cabinetwork (for example, caskets and jewel cases); small furnishing goods; decorative articles.
…
The heading also excludes :
(h) Works of art or antiques of Chapter 97.
* * * *
EN 97.03 provides as follows:
This heading covers original sculptures and statuary, ancient or modern. They may be in any material (stone, reconstituted stone, terra cotta, wood, ivory, metal, wax, etc.), in the round, in relief or in intaglio (statues, busts, figurines, groups, representations of animals, etc., including reliefs for architectural purposes).
The same sculpture may therefore be reproduced as two or three “copies” in marble, wood, wax, bronze, etc., and a few in terra cotta or in plaster. Not only the preliminary model, but also the “clay form”, the “plaster model” and these “copies” constitute original works of the artist; the copies are in fact never quite identical as the artist has intervened at each stage with additional modelling, corrections to casts, and for the patina imparted to each article. Only rarely does the total number of replicas exceed twelve.
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.).
* * * * *
Note 1(r) to Chapter 44 excludes works of art of Chapter 97 from Chapter 44. Thus, we must first consider whether the instant statue is classified in heading 9703, HTSUS, before we can consider the applicability of heading 4420, HTSUS.
Heading 9703, HTSUS, provides for original sculptures and statuary. The ENs to heading 97.03 note that "[t]his heading covers original sculptures and statuary, ancient or modern." Note 3 to Chapter 97 further observes that works of conventional craftsmanship of a commercial character are excluded form this heading. CBP has addressed the criteria for classification in this heading in several rulings, noting that while there have been no court decisions interpreting this HTSUS provision, the corresponding TSUS provision for “original sculptures and statuary” has been extensively addressed by the courts, which have stated that a sculpture or statue is “original” for the purpose of classification within this provision if the artist who executed the sculpture or statuary exercised his own esthetic imagination and artistic conception in creating the work. See H.H. Elder & Co, Forest Lawn Co. v. United States, 64 Cust. Ct. 182, C.D. 3979 (1970). In H.H. Elder, the Court, using this “originality” test, 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 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... These statues are merely faithful imitations of the ones at Forest Lawn; their successful execution was dependent solely upon [the sculptor's] skill in copying the so-called originals.
In HQ 966030, CBP similarly found that a stone figurine (ushabti) of Neferhotep was not an original statue or sculpture of heading 9703, HTSUS, because the underlying character and form of the piece was commonly used at its time of fabrication. The only unique portion of the ushabti was a small area where the hieroglyphics identifying the article as Neferhotep's were carved.
While court cases decided under the TSUS are not dispositive on classification issues under the HTSUS, they may offer some guidance in determining classification under the HTSUS, particularly when the corresponding language is essentially identical. 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 Co. v. United States, CIT Slip Op. 98-76 (1998), affirmed, CAFC Slip Op. 98-1537)) 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. See e.g., HQ 966030, dated January 28, 2003.
In accordance with the reasoning in H.H. Elder and HQ 966030, the statue of Our Lady of Guadalupe at issue is not a product of the artist’s own aesthetic imagination and artistic conception. The image of Our Lady of Guadalupe represented by the sculpture and countless other works dates back to the original apparition of 1531, in which the image was imprinted on the cloak of the witness, Juan Diego. While the artist added some original detail, the work is still nearly indistinguishable from countless other paintings and sculptures of the same subject, including other Guadalupe statues created by the Ferdinand Stuflessor art studio (www.stuflesser.com), and model 779/FR on the Meyer Vogelphol website. See http://www.mvcatalog.info. See also, http://www.google.com/search?q=our+lady+of+guadalupe&hl=en&client=firefox-a&hs=m08&rls=org.mozilla:en-US:official&prmd=ivns&tbm=isch&tbo=u&source= univ&sa=X&ei=2wYBTpnGO8jn0QHOioy_Dg&ved=0CFIQsAQ&biw=1101&bih=657. The image of the sculpture was thus commonly in use at the time of fabrication.
Furthermore, we note that the documentation provided may not be accurate as regards the identity of the artist. The importer attests that the name of the master artist who carved the statue is Ferdinand Stuflessor--i.e., the name of the studio and its original founder. However, there does not appear to be a Ferdinand Stuflessor currently affiliated with the studio; according to the studio's website, the current generation of the Stuflesser family names only Filip and Robert Stuflessor, sons of Ferdinando Stuflessor, deceased in 2009. Neither Filip, Robert, or Ferdinando appear to actually be artists; they are merely the owners/managers of the business. It appears likely, then, that the name given was the name of the studio, and not the artist. The studio itself employs several different artists. Furthermore, no declaration was filed pursuant to CBP regulation 19 CFR 10.48, supra, which sets out the documentation requirements for heading 9703, HTSUS. The requirements of 19 CFR 10.48 thus have not been met.
For the foregoing reasons, the statue of Our Lady of Guadalupe is not classified in heading 9703, HTSUS.
The importer raises the alternative classification of heading 9810, HTSUS, to the subject merchandise, specifically subheading 9810.00.25, HTSUS, which provides for "articles imported for the use of an institution organized and operated for religious purposes...statuary." Articles of subheading 9810.00.25, HTSUS, must be exclusively for the use of the religious institution involved, and not for distribution, sale or other commercial use within five years of being entered, pursuant to U.S. Note 1 to Subchapter X of Section XXII, HTSUS.
CBP has consistently found that in order to qualify for duty-free entry under subheading 9810.00.15, HTSUS, imported articles must be the subject of a pre-importation sale to a designated institution, in keeping with the requirements of U.S. Note 1 to Subchapter X, Chapter 98, HTSUS. See e.g., HQ H170536, dated July 7, 2011 and HQ 950848, dated May 11, 1992, in which importations of religious articles failed to qualify for duty-free treatment under subheading 9810.00.25, HTSUS, because they were sold to religious institutions by for profit businesses after entry into the United States. In the instant case, the importer claims that the subject merchandise was commissioned on behalf of a religious institution—i.e., the Holy Spirit Church—and sold and shipped directly to that entity. However, we note that the documentation is not entirely clear on this last point; the purchase order lists the Holy Spirit Church as the consignee, but describes a fullround statue; the invoice makes no mention of the Holy Spirit Church, but describes a 3/4 relief statue, which conforms to the pictures of the Guadalupe statue we presume to be at issue. The remaining entry documentation—the entry summary, the entry/ immediate delivery form, and the air waybill—similarly make no mention of the Holy Spirit Church; Meyer Vogelpohl is listed as the recipient of the merchandise. Although the importer notes that some shipments containing multiple orders are first sent to their facility in Cincinnati (the address listed on the entry documents), separated, and then forwarded to the specific purchasers (which would still satisfy the requirements of the subheading), it also claims that this statue in particular was sent directly to the importer upon importation. Furthermore, we note that substantially similar models (which also conform to the description of the merchandise on the invoice) are available for sale directly through the Meyer Vogelpohl (a for profit institution) website, and are thus part of the importer’s inventory, intended for retail sale to a nonspecific customer. If the instant statue was simply added to Meyer Vogelpohl existing stock and not imported to satisfy a specific order from a religious institution, it would not satisfy the terms of the subheading, pursuant to HQ 950848. Finally, the email correspondence in the file is between only Meyer Vogelpohl and the art studio—no record is provided of correspondence with the Holy Spirit Church or other documentation indicating that the Holy Spirit Church ordered this item specifically.
Accordingly, the facts of this case as provided to this office are insufficient to support a classification in subheading 9810.00.25, HTSUS. If the importer can clarify whether the invoice or the purchase order applies to the instant entry (or whether they both describe the same entry but the description of the merchandise in one or both documents is inaccurate), and provide other documentation (for example, a bill from Meyer Vogelpohl to the Holy Spirit Church, and communication between the importer and the purchaser detailing the terms of the transaction such as the description of the merchandise, the art studio, and the delivery process) to support that the specific statue at issue was ordered by and delivered to the Holy Spirit Church, and that it was not sold from the inventory stock of Meyer Vogelpohl, then you may find that the requirements of 9810.00.25 have been satisfied. In the absence of such evidence, the statue is classified as liquidated, in heading 4420, HTSUS, as a statuette of wood. See e.g., HQ 956544, dated October 19, 1994; NY 881846, dated February 3, 1993; NY 802170, dated September 30, 1994.
HOLDING:
By application of GRI 1, the instant statue is classified in heading 4420, HTSUS, specifically subheading 4420.10.00, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: statuettes and other ornaments, of wood.” The 2014 column one, general rate of duty is 3.2% ad valorem.
Duty rates are provided for the internal advice applicant’s convenience and are
subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the public version of the decision available to CBP personnel, and to the public online at www.CBP.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division