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HQ W968459




December 11, 2007

CLA-2 OT:RR:CTF:TCM W968459 IDL

CATEGORY: CLASSIFICATION

TARIFF NO.: 9023.00.00

Area Director, JFK International Airport Area C/o Chief, Liquidation and Protest Branch Building 77
JFK International Airport
Jamaica, New York 11430

RE: Application for Further Review of Protest No. 4701-06-100534; Sea Clock Replica

Dear Area Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4701-06-100534, timely filed by counsel on behalf of Aries International, Inc, against your classification and liquidation of a “sea clock replica”, under heading 9104 of the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protestant describes the item as a “one-of-a-kind replica of John Harrison’s H2 Sea Clock”. According to information provided by the protestant, John Harrison’s original “H2 Sea Clock” invention, completed in 1739, helped to lay the foundation for the development of the marine chronometer, which revolutionized the art of navigation. The sea clock replica at issue, completed in 2005 at a cost of $250,000, was painstakingly created over the course of nineteen years.

On September 14, 2005, Aries International, Inc. (“protestant”) made entry of the sea clock replica in heading 9703, HTSUS. On October 14, 2005, CBP issued a “Request for Information” (CBP Form 28). On November 14, 2005, CBP issued a “Notice of Action” (CBP Form 29), indicating that the sea clock replica “presented in this entry will be reclassified” in heading 9104, HTSUS, “[d]ue to a failure to respond to [the] Request for Information” dated October 14, 2005.

On February 3, 2006, the port liquidated the entry, classifying the sea clock replica in heading 9104, HTSUS. The protestant contends that the sea clock replica should be classified in heading 9705, HTSUS, as a collector’s piece of historical interest, or alternatively, in heading 9503, HTSUS, as a recreational model. The port now contends, in light of additional evidence provided by the protestant and not available prior to liquidation, that the sea clock replica should be classified in heading 9105, HTSUS, as a clock.

ISSUE:

Whether the sea clock replica is correctly classified in heading 9023, HTSUS, as an instrument, apparatus or model designed for demonstrational purposes, or in heading 9105, HTSUS, as a clock, or in heading 9503, HTSUS, as a recreational model, or in heading 9705, HTSUS, as a collector’s piece of historical interest?

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on the classification and rate and amount of duties chargeable. The protest was timely filed, within 180 days of liquidation of the entry at issue. The Application for Further Review was properly approved, as this is a novel question meeting the requirements of 19 CFR § 174.24(b) and § 174.25.

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

9023 Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof

9105 Other clocks:

9503 [R]educed-size (“scale”) models and similar recreational models, working or not

9705 Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest:

Counsel contends that the subject item should be classified in heading 9705, HTSUS, or alternatively, in heading 9503, HTSUS. We disagree. Although the original H2 Sea Clock, itself, has achieved historical interest, the subject item is merely a replica. EN 97.05(C) provides that

[g]oods produced as a commercial undertaking to commemorate, celebrate, illustrate or depict an event or any other matter, whether or not production is limited in quantity or circulation, do not fall in this heading as collections or collectors’ pieces of historical or numismatic interest unless the goods themselves have subsequently attained that interest by reason of their age or rarity. [Underlines added]

The sea clock replica, completed in 2005, clearly, has not attained historical or other interest under heading 9705, HTSUS, by reason of its age. With regard to the “rarity” of the sea clock replica, counsel argues that it is very unlikely that another replica will be created because of the great “level of difficulty and time required to replicate the H2”. Therefore, counsel concludes, the sea clock replica, by reason of its “rarityhas attained the level of a collector’s piece of historical interest“. We disagree. Whether or not counsel is correct regarding the likelihood of another sea clock replica being created, the issue remains whether the replica has attained interest by reason of its rarity. It is our position that the rarity of the sea clock replica is not the reason for any interest attained by it, such as might be the case with coins or medals. See HQ 960924 (September 15, 1999). As such, the sea clock replica may not be classified in heading 9705, HTSUS, as a collector’s piece of historical interest.

Heading 9105, HTSUS, provides for “Other clocks” (i.e., clocks other than those falling in heading 9103, HTSUS—“clocks with watch movements, excluding clocks of heading 9104”, and in heading 9104, HTSUS—“[i]nstrument panel clocks and clocks of a similar type forvessels”). EN 91.05 provides for, in pertinent part, “marine or similar chronometers, i.e., high precision stationary timepieces, mainly designed for keeping time on ships though some are also used for scientific purposes.” Although the original H2 Sea Clock would meet the guidelines set forth in EN 91.05, the sea clock replica is neither a “high precision” timepiece by today’s standards nor was it designed for keeping time or for scientific purposes. Indeed, counsel has stated that although the sea clock replica “is a functional clock (in that it can keep time), its primary purpose is to demonstrate the historical evolution of the clock for exhibition purposes. Accordingly, it was never regulated to keep precise time. The subject clock was designed to be a work of art.” [Emphasis added] Therefore, as the sea clock replica was neither intended nor designed for timekeeping, it may not be classified in heading 9105, HTSUS, as a clock.

The remaining competing provisions are headings 9023 and 9503, HTSUS. Chapter Note 1(k) of Chapter 90, HTSUS, excludes articles of chapter 95. Therefore, we will first examine the provisions of heading 9503, HTSUS.

Heading 9503, HTSUS, covers a wide range of recreational goods, including “recreational models, working or not”. EN 95.03 provides for “models of a kind mainly used for recreational purposes, for example, working or scale models of boats, aircraft, trains, vehicles, etc., and kits of materials and parts for making such models, other than sets having the character of competitive games.” Other items covered in EN 95.03 are wheeled toys, dolls’ carriages, dolls, other toys, and puzzles. Counsel cites NY Ruling Letter J83540 (April 23, 2003) as supportive evidence that the sea clock replica falls in heading 9503, HTSUS. NY J83540 held that “model ships” were recreational, and fell in heading 9503, HTSUS. It is our position that the “one-of-a-kind” sea clock replica, a complex and expensive work created during a span of nineteen arduous years in order to demonstrate the historical evolution of the H2 Sea Clock, is not a “recreational model” falling under heading 9503, HTSUS.

Finally, heading 9023, HTSUS, provides for “models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses.” EN 90.23 provides for a “wide range of instruments, apparatus and models designed for demonstrational purposes (e.g., exhibitions) and unsuitable for other uses.” The heading includes “[s]pecial demonstrational machines or appliances such as the Wimshurst machine (for experiments with electricity), the Atwood machine (for demonstrating the law of gravity), Magdeburg hemispheres (for demonstrating the effects of atmospheric pressure), the ‘s Gravesande [sic] ring (for demonstrating thermal expansion), Newton’s disc (for demonstrating the colour composition of white light).” The machines or appliances cited in the example pertain to scientific and technological demonstrational devices. Similarly, the sea clock replica is a technological and scientific device used to demonstrate how longitudinal position is and was determined by means of astronomical observation. EN 90.23 also includes a provision for “small scale demonstrational models (ofmachines)” provided that they are not “suitable solely for ornamental purposes”.

Accordingly, it is our position that the sea clock replica is covered by the provisions of EN 90.23, and is classified in heading 9023, HTSUS, as “[i]nstruments, apparatus and models, designed for demonstrational purposesunsuitable for other uses.”

We note that EN 90.23 excludes “[a]rticles designed for both recreational and demonstrational purposes.” [Emphasis added] We have taken the position that the sea clock replica is not an item for recreational purposes. Therefore, the exclusionary provision cited from EN 90.23 does not apply here.

HOLDING:

By application of GRI 1, the sea clock replica is classified in heading 9023, HTSUS, and provided for under subheading 9023.00.00, HTSUS, which provides for “[i]nstruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof”. The column one, general rate of duty under subheading 9023.00.00, HTSUS, at the time of entry was “Free”. Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed by the protestant, you are instructed to allow the protest in full.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the counsel for 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, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP 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 and Trade Facilitation Division

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