CLA 2 CO:R:C:G 083107 LS
District Director of Customs
909 First Avenue
Seattle, Washington 98174
RE: Application for Further Review of Protest No. 3004 7 000214, dated December 16, 1987, filed by Border Brokerage Co., Inc., on behalf of Jerry Wolfman, Pro testing your decision in the liquidation on September 18, 1987, of entry numbers 211 0714045 and 211 0722381, dated October 19, 1986 and December 7, 1986, respectively,
covering a shipment of wood carvings made in Canada.
Dear Sir:
This is our decision on the above referenced Application for Further Review of Protest which was forwarded to our office by your memorandum dated November 8, 1988.
FACTS:
The subject merchandise consists of 110 wood carvings created by 35 native Northwest Coast Canadian Indian artists. Most of the carvings are of masks or animal figurines and are
considered a traditional and ceremonial art form. Jerry Wolfman is the exporter of these carvings.
The wood carvings were entered under item 765.25, Tariff Schedules of the United States Annotated (TSUSA), which provides for original works of the free fine arts, not provided
for in items 765.03 765.20, eligible for duty free entry. Your office has liquidated the entries under item 207.00, TSUSA, which provides for articles of wood, not specially provided
for, dutiable at the rate of 5.5 percent ad valorem.
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Border Brokerage Co., Inc., on behalf of Jerry Wolfman, contends in its protest that the Northwest Coast Canadian Indian artists should be afforded duty free status for the
following reasons. First, the artists find it impossible to collect enough work to put on private shows because they rely on sales of their art to provide income to house and feed their
families. Further, these artists, who live in remote parts of British Columbia, have limited contact outside their villages other than trips to cities to sell or trade their art. Second, the works should be considered "of the free fine arts," even if they are not shown in a recognized gallery or museum, because they are more artistic than many works in the Royal British Columbia Museum. Finally, because the Inuit people of northern Canada had their soapstone carvings granted duty free status on the basis of their unique and indigenous art form, the carvings
of the Northwest Coast Canadian Indians should also be given duty free status.
The protestant further cites to ORR Ruling 743 68, dated August 21, 1968, which granted permission to certain Canadian agencies to certify Canadian Eskimo carvings as original works of art under item 765.15, TSUSA, a duty free provision. The protestant contends that Jerry Wolfman, who has been involved in the purchase and
certifying agencies included in ORR Ruling 743 68.
ISSUE:
Whether the subject wood carvings are classifiable under the duty free provisions of items 765.15 or 765.25, TSUSA, or under item 207.00, TSUSA, which provides for a duty rate of 5.5 percent ad valorem?
LAW AND ANALYSIS:
Item 765.15, TSUSA, provides for:
Original sculptures and statuary (including the first
10 castings, replicas, or reproductions made from a
sculptor's original work or model with or without a
change in scale and whether or not the sculptor is
alive at the time the castings, replicas, or repro
ductions are completed), all the foregoing made in
any form from any material as the professional pro
ductions of sculptors only, whether in round or in
relief, and whether cut, carved, or otherwise wrought
by hand or cast.
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Item 765.25 provides for:
Original works of the free fine arts not provided
for in the foregoing provisions of this part, in any
media including, but not limited to, applied paper
and other materials, manufactured or otherwise, such
as are used on collages.
19 CFR 10.48 sets forth specific requirements which apply
to the entry of works of art classifiable in items 765.10
765.25, TSUSA. 19 CFR 10.48(a) requires that the invoices for
such works of art show the name of the artist who produced them
and whether they are originals, replicas, reproductions, or
copies. 19 CFR 10.48(b)(1) requires, in pertinent part, that a
declaration by the artist be filed with the entry showing
whether the work of art is the original or, in the case of
sculpture, whether it is the original work or model or one of
the first ten castings, replicas, or reproductions. If it is
impossible to produce the declaration of the artist, a
declaration of the seller or shipper may be substituted. 19
CFR 10.48(b)(2). 19 CFR 10.48(e) states that with regard to
articles claimed to be free under item 765.25, TSUSA, "the
district director may require proof of the character of the
article, including, when necessary, certificates from curators
or other recognized authorities on art, that the imported
article represents some school, kind, or medium of the free
fine arts."
Items 765.15 and 765.25 both require that the work of art be created by a professional artist. In order to show that he or she has achieved professional artist status, the artist must
be either: (1) a graduate of a course in fine art, or in sculpture, from a recognized school of fine art, not industrial art; or (2) recognized in art circles as a professional by the acceptance of his or her works in public exhibitions limited to the free fine arts. CIE 160/56, dated February 6, 1956. 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 so as to be recognized as examples of the free fine arts by certain art authorities. CIE 160/56, dated February 6, 1956; Headquarters Ruling Letter (HRL) 063320, dated September 27, 1979; HRL 063591, dated March 3, 1980.
In order to be classified in items 765.15 and 765.25, the article must be a work of the free fine arts, rather than the decorative or industrial arts. Industrial or decorative artists include the potter, glassmaker, goldsmith, weaver, woodworker, jeweler, and other artisans and craftsmen.
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Although their works are considered both artistic and beautiful, they are not recognized as works of the free fine arts. Works of the free fine arts include painting and sculpture, as well as works in other media as provided for in item 765.25. See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916); HRL 063320, dated September 27, 1979.
Items 765.15 and 765.25 both require that the work of art be original. Item 765.15 provides that original sculptures include the first 10 castings, replicas, or reproductions made
from a sculptor's original work or model. Item 765.25 requires that the work be a unique, one of a kind article. An article is "original" when the artist exercises his own esthetic
imagination and conception in creating it. Forest Lawn Memorial Park v. United States, 29 Cust. Ct. 224, 229, C.D. 1472 (1952).
Precluded from coverage in items 765.15 and 765.25, TSUSA, are articles of utility or articles for industrial use. Headnote 1(iv) to Schedule 7, Part 11, Subpart A, TSUSA.
Pursuant to ORR Ruling 743 68, relied upon by the protestant, seven certifying agencies selected by the Canadian Government's Department of Indian Affairs and Northern
Development were given the power to certify Canadian Eskimo carvings as works of art under item 765.15, TSUSA. An updated list of 9 certifying agencies is found in HRL 058728, dated
December 18, 1978. The certifying agencies affix a special tag or label to these works of art, thus obviating the necessity of the artist to meet the requirement of filing an affidavit under
19 CFR 10.48(b)(1). However, the other requirements of 19 CFR 10.48 must still be met.
We are not aware of a separate Customs ruling covering the soapstone carvings of the Inuit people of northern Canada. The carvings of these Eskimo people are already covered by ORR Ruling 743 68. The certification procedure set forth in that ruling only applies to Canadian Eskimo art. Therefore, each of the 110 wood carvings created by the 35 native Northwest Coast Canadian Indian artists, which are the subject of this protest, must meet the requirements set forth in items 765.15 or 765.25, TSUSA, and in 19 CFR 10.48. These artists have not shown that they have achieved professional artist status, i.e., that they have graduated from a recognized school of fine art or that they are recognized in art circles as professionals by the acceptance of their works in public exhibitions limited to the free fine arts. Therefore, the subject wood carvings do not qualify for duty free entry under either item 765.15 or item
765.25, TSUSA. Since the professional artist status criteria is not met, we need not reach the issue of whether the other requirements of
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Headnote 3 to Schedule 7, Part 11, Subpart A, TSUSA, provides that "/s/culptures and statuary not covered by item 765.15 are covered in other parts of the schedules on the basis
of the component materials of which they are made." Articles which are not considered original works of the free fine arts under item 765.25, TSUSA, are also classified according to the
component material in chief value. See, e.g., New York Ruling Letter 802603 (batik which did not qualify under item 765.25, TSUSA, was classified as an article, not specially provided
for, of textile material).
Accordingly, the 110 wood carvings were properly classified under item 207.00, TSUSA, as articles not specially provided for, of wood.
HOLDING:
For the foregoing reasons, Customs properly classified the merchandise under item 207.00, TSUSA, as articles of wood not specially provided for, dutiable at the 1987 rate of 5.5
percent ad valorem. Therefore, the protest should be denied. A copy of this decision should be sent to the protestant along with the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division