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.
FACTS:
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.
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 classifiable as coated paper or
paperboard articles which are subject to duty in Chapter 48,
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.
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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division