CLA-2 CO:R:C:G 087577 WAW

Frans & Helen Officer
8920 Southwood Drive
Bloomington, MN 55437

RE: Hand-painted boxes from Russia

Dear Mr. and Mrs. Officer:

This letter is in response to your inquiry, dated July 16, 1990, concerning the tariff classification of seven lacquer boxes from Russia under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Descriptive literature and photographs of the sample lacquer boxes were submitted along with your request.


The sample merchandise is described as Russian lacquer boxes. These boxes have hand-painted scenes displayed either on the lid or on the sides of the box. The boxes usually depict scenes from traditional Russian fairy tales, Russian architecture or Russian landscapes. Each of the boxes reveals an original artist with his own manner, his own interpretation and his own range of colors.

The merchandise was entered into the United States on April 15, 1990. At that time, duty in the amount of over $3,000 was paid on the seven lacquer boxes. On June 28, 1990, you wrote a letter to the Assistant Area Director of U.S. Customs Inspection and Control of the Western Great Lakes Area requesting that he refund your money based on your claim that the items at issue are entitled to duty free status because they constitute works of art. On July 5, 1990, in a letter addressed to you, the Assistant Area Director responded that your inquiry had been forwarded to the National Import Specialist (NIS) who specializes in the area of Chapter 97 works of art and the NIS had found that the lacquer boxes from Russia did not fulfill the requirements of a "work of art." The Assistant Area Director also advised you to contact the Office of Regulations and Rulings, General Classification Branch, if you wished to pursue this matter further.

In your letters, dated June 28 and July 16, 1990, you maintain that these articles are entitled to duty free status since they qualify as "works of art" as that term is defined under the tariff schedule. Furthermore, you state that the Customs agent dismissed your claim that these articles are works of art due to the fact that the artist's name did not appear on a designated list of artists that are retained for these purposes. Also, you claim that the Customs agent refused to look at the art books that you presented which you maintain contain both photographs of various types of lacquer boxes and a list of recognized artists who specialize in this area. You have also enclosed a brief resume of one of the Russian artists which you suggest demonstrates that this artist is well-known and respected in the field. Therefore, you maintain that Customs erred in its classification of these articles as coated paper or paperboard articles in subheading 4823.90.6500, HTSUSA, and that you should be entitled to a refund of the duties that you paid.


Whether the subject merchandise is classifiable as "works of art" under the duty-free provision in Chapter 97, HTSUSA, or whether the articles are classifiable as coated paper or paperboard articles which are subject to duty in Chapter 48, HTSUSA.


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.

You have requested that the sample merchandise be classified under Heading 9701, HTSUSA, as a "work of art" and entitled to duty free status. In support of your claim you state the following:

Russian lacquer boxes are art. They're no different than traditional paintings. The medium is not canvas and the form is not flat, but they are paintings nevertheless. As with the more traditional paintings, values are determined by who the artist is and by the quality of the paintings on the boxes, not the size or shape of the boxes themselves (the boxes have no current purpose other than to enhance and display the fine hand-painted scenes).

In order for an article to be classified in Chapter 97, HTSUSA, it must meet the requirements for "works 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 Chapter 97.

The Customs Regulations sets forth specific requirements which apply to the entry of works of art classifiable in Heading 9701, HTSUSA. First, the invoices covering these articles must show whether they are originals, replicas, reproductions, or copies, and also the name of the artist who produced them, unless upon examination the appraiser is satisfied that such statement is not necessary to properly determine the nature of the article. 19 CFR 10.48(a). In addition, a declaration by the artist who produced the article must be presented to indicate whether it is original, or, in the case of sculpture, the original work or model or one of the first ten castings, replicas, or reproductions made from the original work or model must be shown. 19 CFR 10.48(b)(1). With regard to articles claimed to be duty free under Heading 9701, HTSUSA, 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. 19 CFR 10.48(e).

In addition, Heading 9701, HTSUSA, requires that the work of art be created by a professional artist. In order to show that a person 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 to the professional artist status, 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.

We have received no information, short of your statements and a biography of the artist, relating to the rare and special nature of the Russian lacquer boxes or the status of the makers of the boxes. The artists involved here 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. Until such information is received, we cannot determined whether or not your merchandise is a "work of art." Thus, failing to satisfy the criteria for professional artist status, we do not need to reach the issue of whether the other requirements of Heading 9701, HTSUSA, are met. Accordingly, it is the determination of this office that the lacquer boxes do not qualify for duty free entry under subheading 9701.10.0000, HTSUSA.

Moreover, Customs has previously determined that articles of utility are excluded from the free entry provisions for original paintings and sculptures in the tariff schedule. The Customs Court has held that it is not enough for a plaintiff to show that the articles in controversy are original sculptures made by a professional sculptor; it must also be shown that they are not articles of utility. Joseph A. Paredes & Co., a/c A. Guintoli v. United States, 40 Cust. Ct. 471, Abstract 61618 (1958). In T.D. Downing Co. v. United States, the Customs Court had the opportunity to distinguish works of art from articles of utility where elements of both may be present. In Downing, the Court stated that:

Where the utilitarian purpose is clearly subordinate or nonexistent, sculptured articles, although in the form of vases or urns, have been held classifiable as works of art. [Emphasis provided]. United States v. Baumgarten & Co., 9 Ct. Cust. Appls. 321, T.D. 32052 (1911); Samuel Shapiro & Co., Inc., 31 Cust. Ct. 181, C.D. 1566 (1953). In the case first cited the court said (pp. 323-324):

*** 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. [Emphasis provided].

The question in the instant case centers on the determination of whether boxes which are laminated and decorated with various folklore motifs, are classifiable as original works of art in Heading 9701, HTSUSA, and not as articles of utility, within the meaning of the tariff schedule. The boxes at issue are normally articles of utility; they can be used to contain small articles of jewelry or other small trinkets. We believe that insofar as the articles at issue are primarily used as containers to store and protect goods, the ornamental designs are clearly subordinate to the article as a whole and this utilitarian function precludes these articles from classification as works 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 works performed by potters, glassmakers, goldsmiths, weavers, woodworkers, jewelers, and other artisans and craftsman. However, the Customs Court has determined that although works by such professions are considered both artistic and beautiful, "it can hardly be seriously contended that it was the legislative purpose to include such things, beautiful and artistic though they may be, in a provision which, as shown by its history and the enumeration therein contained, was intended to favor that particular kind of art of which painting and sculpture are the types." See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916); HRL 063320, dated September 27, 1979. The Explanatory Notes to Chapter 97, HTSUSA, reflect this interpretation by excluding works of conventional craftsmanship of a commercial character such as ornaments, religious effigies, articles of personal adornment, etc. Accordingly, the phrase "free fine arts" does not include those works in the decorative or industrial arts.

The Explanatory Notes to the Harmonized Tariff Schedule, while not legally binding, do constitute the official interpretation of the tariff at the international level. Because the heading in question here is a 4-digit, or international level heading, they are particularly pertinent. Furthermore, the Explanatory Notes are intended to provide guidelines for determining what goods are included within the scope of the tariff heading terms which includes "paintings, drawing and pastels." The Explanatory Notes to Heading 9701, HTSUSA, state that:

This group also excludes:

* * * *

(d) Hand-decorated manufactured articles such as wall coverings consisting of hand-painted woven fabrics, holiday souvenirs, boxes and caskets, ceramic wares (plates, dishes, vases, etc.), these are classified under their own appropriate headings.

Exclusion (d) of the above Explanatory Note would appear to encompass goods of the type at issue here. Inasmuch as the lacquer boxes at issue are hand-decorated manufactured articles, they are excluded from consideration in Heading 9701, HTSUSA. Moreover, Customs has previously eliminated articles from consideration under subheading 9701.10.0000, HTSUSA, due to the exclusionary language in the aforementioned Explanatory Note. See HRL 083351, dated November 9, 1989 (classification of brooches which consist of gold and silver under Heading 7113 or 7116, HTSUSA). The exclusion, we believe, clearly manifests an intent by the drafters of the nomenclature not to classify goods of this type in Heading 9701, HTSUSA, but in Chapter 48, under a paper and paperboard related heading.

It is the determination of this office that decorated lacquer boxes such as those at issue here are not classified in Chapter 97, HTSUSA, but are excluded from the headings of that chapter. Since a more specific provision covering the sample lacquer boxes does not exist, they are classified under the provision for other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp paper, paperboard, cellulose wadding or webs of cellulose fibers, under Heading 4823, HTSUSA.


Based on the foregoing analysis, the lacquer boxes are classifiable under subheading 4823.90.6500, HTSUSA, which provides for coated paper or paperboard. Articles that are imported from the Soviet Union are subject to Column 2 rates of duty. Thus, the tariff rate applicable for articles classified under this subheading which are imported from the Soviet Union is 26.5 percent ad valorem. We regret that we are unable to refund any of the duties that you paid upon entering the United States with the subject merchandise.

Under the circumstances of your request, we are treating your objections to the classification of this merchandise as a legal protest under 19 U.S.C. 1514 and by this letter determine that the protest is denied.


John Durant, Director
Commercial Rulings Division