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HQ 955753


May 20, 1994

CLA-2 CO:R:C:F 955753 K

CATEGORY: CLASSIFICATION

TARIFF NO.: 9703.00.00; 9813.00.70

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
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.

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

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

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