CLA-2 CO:R:C:F 950298 STB

Ms. Joan Shindledecker
C&J International, Inc.
3021 East Baltimore St.
Baltimore, Maryland 21224

RE: Ceiling Embellishment

Dear Ms. Shindledecker:

This letter is in response to your inquiry of July 22, 1991 concerning the tariff classification of a hand carved and hand painted ceiling embellishment. Pictures of the structure were submitted with your inquiry.


The embellishment has been imported in an unassembled condition and, as of the date of your inquiry, was in the Foreign Trade Zone in Baltimore. The work is attached to an existing ceiling by means of pins and pillars and is supported by hand carved columns. It has no utilitarian purpose and is the work of five individuals; a brief resume has been submitted for each of the individuals involved in an attempt to demonstrate that they are recognized artists. The creation of the embellishment, which is carved from wood, took approximately two years.


Should the subject ceiling embellishment be classified as a "work of art" in Chapter 97 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or should it be classified elsewhere?


Classification under the (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the ta-2-

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 GRI's may then be applied.

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.

A Chapter 97 work of art 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 craftsmen. 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); Headquarters Ruling Letter (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.

Additionally, Customs has 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. -3-

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 added]. 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 added].

Thus, the nature of the utilitarian aspect of the instant article is also a consideration in the determination of the applicability of Chapter 97, HTSUSA.

It is our determination that the ceiling embellishment is properly classified in Chapter 97, HTSUSA. The resumes of the creators of this work establish that they are not commercial craftsmen, but rather recognized artists who create works of the free fine arts. The ceiling embellishment has no utilitarian purpose or value and is original in concept, design and execution. It is clearly not a mass produced item and, having taken two years to create, does not lend itself well to mass production. The work was hand carved and hand painted.

The proper subheading of classification is subheading 9703.00.0000, HTSUSA, the provision for original sculptures and statuary, in any material. The Explanatory Notes (ENs) to the HTSUSA constitute the official interpretation of the tariff at the international level. The ENs to subheading 9703.00.0000, HTSUSA, state that one of the materials allowed by that provision is wood and they further state that architectural reliefs are included in this provision. The ceiling embellishment in question is essentially an architectural relief of wood.



The ceiling embellishment is classified in subheading 9703.00.0000, HTSUSA, the provision for original sculptures and statuary, in any material. Items classified under this provision are eligible for duty-free entry.


John Durant, Director
Commercial Rulings Division