CLA-2 CO:R:C:G 086227 WAW
Marvin J. Goldstein, Esq.
Stroock & Stroock & Lavan
Seven Hanover Square
New York, N.Y. 10004-2594
RE: Reconsideration of Headquarters Ruling Letter (HRL) 083351;
Brooches of gold and silver
Dear Mr. Goldstein:
This ruling is in response to your letter, dated December
20, 1989, on behalf of your client, Loveed Corporation (a/k/a The
Helen Drutt Gallery), requesting a reconsideration of the
classification of certain ornaments as jewelry, rather than as
artwork. Included with your original ruling request, you
submitted a biography of the artist, Manfred Bischoff, as well as
copies of pages of an an art gallery catalogue which contains the
artist's work.
FACTS:
The subject merchandise consists of three brooches made of
gold and silver with two of the brooches also consisting of
pearls and coral designed by Manfred Bischoff. The brooches are
displayed in a frame on the wall of the art gallery. They are
designed with pins on the back and may be worn as pieces of
jewelry.
In HRL 083351, dated November 9, 1989, Customs held that the
subject merchandise is excluded from Chapter 97, HTSUSA,
pursuant to the Explanatory Notes to that chapter and that the
brooches are more properly classifiable as jewelry in Chapter 71,
HTSUSA.
In this request, you ask us to reconsider HRL 083351 based
on the reason that Customs misunderstood the facts at issue.
You contend that the sample articles are not "manufactured
articles" as stated in the ruling letter. Further, you state
that these articles are not "works of conventional craftsmanship
of a commercial character" since each article is individually
designed and crafted, and is intended to be displayed as a work
of art. Finally, you maintain that these articles are not
"jewelry" since they are displayed and sold in art galleries,
rather than in jewelry stores. Accordingly, you argue that the
brooches are classified under the provision for paintings,
drawings and pastels, executed entirely by hand, other than
drawings of Heading 4906 and other than hand-painted or hand-
decorated manufactured articles: other, in subheading
9701.90.0000, HTSUSA, or under the provision for original
sculptures and statuary, in any material, in subheading
9703.00.0000, HTSUSA.
ISSUE:
Whether the subject merchandise is classifiable as works of
art under the duty-free provision in Chapter 97, HTSUSA, or
whether the articles are classified as jewelry which is subject
to duty in Chapter 71, HTSUSA.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
In your letter, you suggest classification of the articles
as "works of art" under Chapter 97, HTSUSA. In order for an
article to be classified in Chapter 97, HTSUSA, it must meet the
standard for "work of art." In a decision interpreting this
term, the United States Customs Court held that in order for an
article to be free of duty under the Tariff Schedules of the
United States (TSUS) item 765.15 as original sculptures or
statuary, it must be of "rare and special genius usually
attributed to works of the free fine arts." See Robert Siebert
v. United States, 65 Cust. Ct. 380, 384, C.D. 4108 (1970); H.H.
Elder and Forest Lawn v. United States, 64 Cust. Ct. 182, 184,
C.D. 3979 (1970). The Customs Court determined that to be
classified under the provision for "fine arts" an article must
possess originality of conception, execution and design. That
court's interpretation of the provision concerning "original
sculptures" under the TSUS is equally applicable to the
successor provision in Heading 9703, HTSUSA. We have received no
information, short of your statements and a biography of the
artist, relating to the rare and special nature of the brooches
or the status of the makers of the brooches. Until such
information is received, we cannot determine that your jewelry is
a work of art.
Moreover, in order to be classified as a "work of art" in
Chapter 97, HTSUSA, an article must be a work of the free fine
arts, rather than the decorative or industrial arts. The phrase
"industrial or decorative arts" includes work performed by
potters, glassmakers, goldsmiths, weavers, woodworkers, jewelers,
and other artisans and craftsman. However, although works by
such professions are considered both artistic and beautiful, the
phrase "free fine arts" does not include those works in the
decorative or industrial arts. See United States v. Olivotti &
Co., T.D. 36309 (Ct. Cust. App. 1916); HRL 063320, dated
September 27, 1979. The Explanatory Notes, which provide the
official interpretation of the tariff at the international level,
to Chapter 97, HTSUSA, reflect this interpretation by excluding
works of conventional craftsmanship of a commercial character
(ornaments, religious effigies, articles of personal adornment,
etc.).
Heading 7113, HTSUSA, provides for articles of jewelry and
parts thereof, of precious metal or of metal clad with precious
metal. The Explanatory Notes to Heading 7113, HTSUSA, state the
following:
This heading covers articles of jewelry as defined in
Note 8 of this Chapter, wholly or partly of precious
metal or metal clad with precious metal, that is:
(A) Small objects of personal adornment (gem-
set or not) such as rings, bracelets,
necklaces, brooches. . .
Based on your description of the sample merchandise, the
brooches meet the description of articles classified in Heading
7113, HTSUSA. Each of the three sample brooches is primarily
composed of either gold or silver. Without viewing actual
samples of the brooches, we cannot determine whether the brooches
are made either of silver, of other precious metal, or of base
metal clad with precious metal for classification purposes.
The applicable rate of duty for the sample brooches ranges from
6.5 percent to 27.5 percent ad valorem depending on the
composition of the brooch and the value of the individual pieces
or parts.
HOLDING:
Based on the foregoing analysis, the articles under
consideration are classified as jewelry under Heading 7113,
HTSUSA. Classification within this heading depends on the
actual composition of the articles. HRL 083351, dated November
9, 1989, is hereby affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division