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HQ 954637

February 16, 1994
CLA-2 CO:R:C:M 954637 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.90

District Director
U.S. Customs Service
477 Michigan Avenue
Room 200
Detroit, Michigan 48226

RE: Protest No. 3801-93-100818; Lalique ornament; 9703.00.00; original sculptures and statuary; EN 97.03; EN 70.13

Dear District Director:

This is in response to the Application for Further Review of Protest No. 3801-93-100818, which pertains to the tariff classification of a Lalique crystal ornament under the Harmonized Tariff Schedule of the United States ("HTSUS"). An additional submission dated February 9, 1994, from counsel for the protestant was considered for this decision.

FACTS:

The merchandise under consideration is a crystal ornament ("ornament"). The ornament is called the "Renard" or "Fox" and was made in 1928 by Rene Lalique of France. Our information indicates that Rene Lalique established a workshop in France that created jewelry from 1885 to 1908 and glass from 1905 to 1945. At the height of production in the Lalique workshop in the late 1920s and early 1930s, 600 workers were employed as Lalique used the modern methods of machinery and mass-production. The "Renard" in question was created as an automotive crystal glass hood ornament in 1928 and is signed "R. Lalique." The ornament is now used as a paperweight.

The time in which the "Renard" was created is considered the "Roaring Twenties", a time in which no expense was spared to show off its luxurious motor vehicles. The Citroen, Delage, Bentley and Rolls Royce of the "Roaring Twenties" had motor mascots or hood ornaments. The most dazzling of these figurines and the most eagerly sought after today are those that Rene Lalique created from 1925 onwards. He created 27 different figurines.

The entry of the ornament was liquidated on December 18, 1992, under subheading 7013.99.90, HTSUS, as other glassware of a kind used for indoor decoration or similar purposes, valued over $5 each. In a protest timely filed on March 15, 1993, the protestant contends that the ornament is classified under subheading 9703.00.00, HTSUS, as original sculptures and statuary, in any material.

The competing subheadings are:

7013.99.90 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...Other Glassware...Other...Other... Other...Valued over $3 each...Other...Valued over $5 each.

9703.00.00 Original sculptures and statuary, in any material.

ISSUE:

Is the Lalique crystal ornament classified under subheading 9703.00.00, HTSUS, as original sculptures and statuary, in any material?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

Note 3, Chapter 97, HTSUS, states that "[h]eading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character." Furthermore, Additional U.S. Note 1, Chapter 97, HTSUS, 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.

In understanding the language of the headings of the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 97.03 (pgs. 1617-1618) states that heading 9703, HTSUS, "...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 or by another artist." "Only rarely does the total number of replicas exceed twelve." The second process described in EN 97.03 is the process where a mold is created to make the sculpture or statuary.

Additionally, EN 97.03 states that heading 9703, HTSUS, excludes:

(a) Ornamental sculptures of a commercial character. (b) Articles of personal adornment, even if they are designed or created by artists, and other works of conventional craftsmanship of a commercial character (ornaments, religious effigies, etc.)
(c) Mass-produced reproductions in plaster, staff, cement, papier mache', etc.

With the exception of articles of adornment classifiable in heading 71.16 or 71.17, all these articles are classified according to their constituent material (heading 44.20 for wood, heading 68.02 or 68.15 for stone, heading 69.13 for ceramics, heading 83.06 for base metal, etc.)

Based on the Chapter 97 notes and EN 97.03, to be classified under heading 9703, HTSUS, an item must be created by a professional artist of the free fine arts, it must be unique or within the first twelve castings, and it must not have a commercial character.

The protestant contends that the ornament is signed "R. Lalique", is one of only three created and is a rare and collectable work of art. As proof of these contentions, the protestant has submitted a receipt confirming that the ornament was purchased for $325,000.00 and a statement from Mssr. Martine de Cervens, of Gallerie Morderne, London, England, which states, in part, that:

The first 'Fox' mascot was made for a client of Lalique as a special commission, and our considered opinion as experts is that 2 other pieces were made, in order to utilise the design.

To the best of our knowledge and belief, the "Fox" mascot was certainly produced in a quantity of less than 10 pieces.

The ornament may be signed "R. Lalique", but all glass creations by the Lalique workshop were signed in that or a similar manner. There is no evidence that Rene Lalique created this piece himself. Nearly 600 employees were working at the Lalique workshop in 1928, anyone of which could have created the ornament and any number could have been created. From past information gathered in researching Lalique creations, it appears all records of the workshops' production were lost during World War II.

Moreover, there is also the question of the commercial character of the ornament. It was created as a hood ornament for a car. This use of the ornament is commercial in character. EN 97.03 excludes ornamental sculptures of a commercial character and works of conventional craftsmanship of a commercial character such as ornaments, from classification under subheading 9703.00.00, HTSUS.

After a review of the preponderance of the available evidence, we are of the opinion that mass-production was used by Lalique, that the actual number of ornaments manufactured cannot be verified and the ornament has a commercial character. Therefore, the ornament is not classifiable under subheading 9703.00.00, HTSUS.

The ornament is classified under subheading 7013.99.90, HTSUS, as other glassware of a kind used for indoor decoration or similar purposes, valued over $5 each. EN 70.13 (pgs. 936-936a) states that this heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds...

(3) Office glassware, such as paperweights... (4) Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views.

We are of the opinion that the ornament is of the class or kind of decorative glass article classified under heading 7013, HTSUS. The ornament is a glass article that is presently used as a paperweight or other decorative glass article for the home or office. Therefore, it is classified under subheading 7013.99.90, HTSUS.

HOLDING:

The Lalique crystal ornament is classified under subheading 7013.99.90, HTSUS, as other glassware of a kind used for indoor decoration or similar purposes, valued over $5 each. This protest should be denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should 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 the decision. Sixty days from the date of the 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 the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels. Sincerely,

John Durant, Director

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