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
LAW AND ANALYSIS:
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.
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
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.
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