CLA-2OT:RR:CTF:TCM: H234009ERB
Nil and Michael Wink
Leher-Wirth-Str. 25
81829 Munich, Germany
[email protected]
RE: Reconsideration of NY N232035; Tariff classification of a silver teapot
Dear Mr. Wink:
U.S. Customs and Border Protection (CBP) issued you New York Ruling Letter (NY) N232035, dated September 11, 2012. NY N232035 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States, (HTSUS) of a solid silver teapot made in 1924 by Marianne Brandt-Bauhaus. On September 18, 2012 you submitted a request for reconsideration of this ruling. We have reviewed NY N232035 and do not find it to be in error with regards to the tariff classification. Our analysis follows.
FACTS:
NY N232035 states the following:
The article under consideration is solid [sic] teapot made in the year 1924 by Marianne Brandt-Bauhaus, a renowned designer. It weighs 9.8 ounces and measures 5.9 inches long by 5.5 inches high. The base of the teapot is marked with the German hallmark, a half moon and crown, and the number “900,’ which indicates the purity of the silver. You indicate that this article will not be used as a teapot. It is an original handmade piece that has recently been on exhibition in London and is being imported for sale at auction with an estimated value of $300,000 - $500,000.
You have requested classification in Chapter 97, Harmonized Tariff Schedule of the United States (HTSUS), because you consider the teapot to be an original sculpture. For tariff purposes, however teapots are considered utilitarian articles. Heading 9703, HTSUS, which provides for original sculptures and statutory, does not cover articles of a utilitarian nature.
The applicable subheading for the solid silver teapot will be 7114.11.7000, HTSUS, which provides for articles of goldsmiths’ or silversmiths’ wares and parts thereof, of precious metal or of metal clad with previous metal, of silver, whether or not plated or clad with other precious metal, other. The rate of duty will be 3 percent ad valorem.
ISSUE:
Whether the subject teapot is an article of silversmiths’ wares due to its utilitarian nature, of heading 7114, HTSUS, or whether it is an original sculpture, of heading 9703, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
7114 Articles of goldsmiths’ or silversmiths’ wares and parts thereof, of precious metal or of metal clad with precious metal:
***
9703 Original sculptures and statuary, in any material:
Section XXI, Note 3 states the following:
Heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character, even if these articles are designed or created by artists.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg 35127 (August 23, 1989).
The EN 97.03, HTSUS, states, in pertinent part, the following:
This heading excludes the following articles, even if they are designed or created by artists:
Ornamental sculptures of a commercial character.
Articles of personal adornment and other works of conventional craftsmanship of a commercial character (ornaments, religious effigies, etc.)
Mass-produced reproductions in plaster, staff, cement, papier mache, etc.
With the exception of articles of adornment classifiable in heading 71.16 or 71.17, all these articles are classified according to their constituent materials (heading 33.20 for wood, heading 68.02 or 68.15 for stone, heading 69.13 for ceramics, heading 85.06 for base metal, etc.)
The article at issue here is a solid silver teapot, purportedly dated from 1924 and crafted by the artist Marianne Brandt-Bauhaus. Determining whether articles are works of art often depends on the professional status of the artist. This may be evidenced by the artist’s biography or professional resume, or general acceptance of his or her works in public exhibitions limited to the free fine arts. In addition, each work must be of such fine quality and high artistic merit that it is recognized as an example of the free fine arts by certain art authorities. See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916). Here, Bauhus is an art school founded in 1919 in Weimar, Germany by architect Walter Groupius (1883-1969). Its objective was to “reimagine the material world to reflect the unity of all the arts.” It was one of the most influential currents in modernist architecture, art, design, and architectural education.
Marianne Brandt-Bauhaus began her art education in 1911 in Weimar, in painting, sculpture, and eventually metal workshop. She came to Staaliches Bauhaus in 1924 completing much of her work in metal, including designing the first lighting fixtures for the Bauhaus Building in Dessau, Germany. From May 1928 to July 1929 she was the director of the metal workshop. Later in her career she focused on interior design, but her reputation was established above all by her industrial products made from metal and glass. Her works are still on display at various museums throughout the world. Therefore, this office finds that Marianne Brandt-Bauhaus qualifies as an artist for HTSUS purposes.
The subject merchandise, however, is a teapot. The predecessor to the HTSUS, the Tariff Schedule of the United States (TSUS), specifically excludes utilitarian items from classification as an original sculpture and statutory. Customs has previously held that the utilitarian purpose exclusion carries through to the HTSUS. See Headquarters Ruling (HQ) 963158, dated January 14, 2000. Though, “articles of utility were not excluded if the artistic character became so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist,” id citing United States v. Olivotti & Co., supra, in the instant case, Brandt-Bauhaus purposefully designed a functional teapot. In fact, the teapot was likely conceived as a prototype for mass production. Though the teapot is decorative and original in design, the artistic character does not supersede the utilitarian nature of the product. See HQ 966363, dated October 14, 2002 (in classifying plates and candlesticks CBP said, “although decorative in nature, [the articles] are still likely to be used to hold, respectively, food or candles – even if the candles are never lit… the plates and candlesticks are still fulfilling their utilitarian purpose” citing HQ 963158, citing Downing v. United States, 66 Cust. Ct. 33 (1971); HQ 950127, dated August 31, 1992); and see H.H. Elder & Co. and Forest Lawn v. United States, 64 Cust. Ct. 182, 184, C.D. 3979 (1970). This teapot is not so rare or of special genius that it ought to be attributed to the works of the free fine arts. See Robert Siebert v. United States, 65 Cust. Ct. 380, 384, C.D. 4108 (1970). Therefore, we find now that the teapot is excluded from heading 9703, HTSUS. Pursuant to the ENs, the article is to be classified according to its constituent material. Here, that is silver. The teapot is therefore described by heading 7114, HTSUS, which provides for silversmiths’ wares.
HOLDING
By application of GRI 1, the subject teapot designed by Marianne Brandt-Bauhaus is classified in heading 7114, HTSUS. It is specifically provided for under subheading 7114.11.70, HTSUS, which provides for, “Articles of goldsmiths’ or silversmiths’ wares and parts thereof, of precious metal or of metal clad with precious metal: Of precious metal whether or not plated or clad with precious metal: Of silver, whether or not plated or clad with other precious metal”: Other.” The column one, general rate of duty is 3% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov
EFFECT ON OTHER RULINGS
NY N232035, dated September 12, 2012, is hereby AFFIRMED.
Myles B. Harmon
Director
Commercial and Trade Facilitation Division