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HQ 966363





October 14, 2003

CLA-2 RR:CR:GC 966363 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.90

Port Director
U.S. Customs & Border Protection
2350 N. Sam Houston Pkwy E. #1000
Houston, TX. 77032-3100

RE: Protest 5301-02-150007; Decorative Glass Articles

Dear Port Director:

This is our decision on Protest 5301-02-150007, filed by Phenicia LLC, NEMTOI-USA Glass Art, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of decorative glass articles by Ioan Nemtoi.

FACTS:

The subject goods are decorative blown glass articles made and signed by Ioan Nemtoi. Three types of glass articles are subject to this protest: vases, plates and candlesticks. Invoice 1/1 involved 400 vases (No. 1), 570 plates, and 630 candlesticks. Invoice 2/2 involved 542 vases (No. 1), 14 vases (No. 2) and 540 candlesticks.

Ioan Nemtoi was born in Romania. He attended The Academy of Fine Arts in Bucharest. He received a Bachelor in Ceramics, Glass, China. He has participated in group and individual exhibitions in various countries around the world. Each individual glass article is signed by Ioan Nemtoi.

The articles were entered under subheading 9703.00.00, HTSUS, as original sculptures and statuary, in any material. You liquidated the entries under subheading 7013.99.90, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other glassware, other, other, other, valued over $3 each, other, valued over $5 each. The protestant asserts the correct classification of the article is as originally entered, under subheading 9703.00.00, HTSUS, as original sculptures and statuary, in any material.

The entry was liquidated on August 23, 2002, and this protest was timely filed on October 18, 2002.

ISSUE:

Whether the quantity of decorative glass articles imported requires the articles to be classified as glassware rather than as sculptures under the HTSUS?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). Under GRI 1, goods are to be classified 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 must then be applied.

In interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is CBP’s practice to consult the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

7013 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:

7013.99 Other:

Other:

Other:

Valued over $3 each:

Other:

7013.99.90 Valued over $5 each

9703.00.00 Original sculptures and statuary, in any material

The articles at issue are decorative blown glass pieces. One important factor that court decisions and prior Customs rulings have utilized in making the determination of whether articles are "works of art" is the professional status of the artist. Normally, the artist must be either a graduate of a course in fine art or recognized in art circles as a professional by the acceptance of his or her works in public exhibitions limited to the free fine arts. This information can be provided in the form of a resume or biography. In addition, each work must be of such fine quality and high artistic merit that it is recognized as an example of the free fine arts by certain art authorities. The artwork is generally signed by the artist. See United States v. Olivotti & Co., T.D. 36309 (Ct. Cus. App. 1916); HQ 951896 (October 6, 1992); NY C87485 (May 5, 1998); and NY C87124( April 27, 1998). In the instant case, the creator of the pieces, Ioan Nemtoi, has a degree in fine arts and has had his work shown in exhibits internationally. He signs each piece of blown glass he creates. Therefore, we find that Ioan Nemtoi qualifies as an artist for HTSUS purposes.

The three types of products involved are vases, plates and candlesticks. All the articles can have a utilitarian purpose, holding flowers or similar articles, placing food upon, and holding candles, respectively. The predecessor to the HTSUS, the TSUS, specifically excluded utilitarian items from classification as a work of art. Customs has previously held that the utilitarian purpose exclusion carries through to the HTSUS. See HQ 963158 (January 14, 2000). However, HQ 963158 also explained that the courts have found that “articles of utility were not excluded if the artistic character became ‘so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist’” (citing United States v. Olivotti, supra).

The vases created by Ioan Nemtoi are decorative in nature and are displayed in his galleries and brochures without holding flowers or similar articles. We note that decorative vases are sometimes displayed as artwork themselves. “The form of a vase indeed has been used from ancient times as a medium for the finest artistic productions, and in many cases the utilitarian character of the article is wholly lost in its artistic character.” United States v. Baumgarten & Co., 9 Ct. Cust. Appls., 321, T.D. 32052 (1911). See HQ 087577 (November 21, 1990). Here we find that vases by Ioan Nemtoi are designed such that their artistic character supercedes the utilitarian nature. This, however, does not hold true for the plates and candlesticks by Ioan Nemtoi. Although decorative in nature, the plates and candlesticks are still likely to be used to hold, respecitvely, food or candles - even if the candles are never lit. Although decorative, the plates and candlesticks are still fulfilling their utilitarian purpose. See HQ 963158 (January 14, 2000), citing Downing v. United States, 66 Cust. Ct. 33 (1971); HQ 950127 (August 31, 1992). Therefore, we find that the plates and candlesticks are excluded from heading 9703, HTSUS.

Next we must consider the quantity of articles imported. Note 3 to Chapter 97 states that “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.” Additional U.S. Note 1 to Chapter 97 states “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.” EN 97.03 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." EN 97.03 further provides: "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: “The heading excludes the following articles, even if they are designed or created by artists: (a) Ornamental sculptures of a commercial character .”

A tariff term that is not defined in the HTSUS or ENs is construed in accordance with its common or commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). “Mass-produce” is defined as “to produce or manufacture goods in large quantities, esp. by machinery.” The Random House College Dictionary, 1973. See also, Webster’s New Collegiate Dictionary, 1979. “Commercial” is defined as “prepared, done, or acting with emphasis on salability, profit, or success” Webster’s New Collegiate Dictionary, 1979.

The subject importations are in large quantities: Invoice 1/1 - 400 vases (No. 1), 570 plates, 630 candlesticks; Invoice 2/2 – 542 vases (No. 1), 14 vases (No. 2) and 540 candlesticks. The website for the artist indicates that one can order an unlimited number of each item. Therefore, these importations far exceed the 12 article standard of EN 97.03. We find that even though the articles are created by an “artist,” they are mass-produced reproductions of a commercial nature, and therefore excluded from heading 9703. See Note 3 to Chapter 97, HQ 953495 (June 29, 1993), and HQ 955863 (January 23, 1995). Therefore, the classification of the decorative blown glass articles produced by Ioan Nemtoi is in subheading 7013.99.90, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other glassware, other, other, other, valued over $3 each, other, valued over $5 each.

HOLDING:

Pursuant to the discussion above, the classification of the decorative blown glass articles by Ioan Nemtoi is in subheading 7013.99.90, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other glassware, other, other, other, valued over $3 each, other, valued over $5 each.

You are instructed to deny the protest. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs 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 Rulings Division

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