CLA-2 CO:R:C:G 086047 STB
Mr. Phillip B. Fleishman
Treasurer
IMARI, Inc.
40 Filbert Avenue
Sausalito, California 94965
RE: [Classification of] Hand-Painted Screens
Dear Mr. Fleishman:
This letter is in response to your letter of November 9,
1989, requesting a tariff classification for various hand-painted
Japanese folding screens. Samples were not submitted with the
request.
FACTS:
The instant merchandise consists of various hand-painted
screens to be imported from Japan. These screens are the
folding, "byobu" type, with an average age of 60 to 80 years old.
They are comprised of wooden frames, covered with rice paper and
held together with paper hinges. Sumi ink and water soluble
colors are normally utilized in the painting of the items in
question. The sizes range from the 2 panel screen at 60" x 60" to
the full 6 panel screen at 70" x 146" and the values of the
screens range from $1,000.00 to $6,000.00. They are painted on
one side. You state that you do not normally provide "wall
hanging" hardware with the screens. You also state that you do
not provide floor stands because they are not necessary: the
screens can stand on their own. These particular screens are not
signed by the artists, and some of them were painted at "artist
schools" in Japan, whereby several art students would work on the
same screen. Some of this information was provided in your
letter of November 9; the remainder was provided by yourself in a
telephone conversation on December 21, 1989.
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ISSUE: Are these screens entitled to free entry under subheading
9701.10.0000, HTSUSA, as paintings, drawings and pastels executed
entirely by hand?
LAW AND ANALYSIS:
Classification under the HTSUSA is governed by the General
Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings together with any relevant Section or Chapter
notes.
Heading 4421, HTSUSA, provides for "Other articles of wood"
and Subheading 4421.90.4000 provides for "Wood blinds, shutters,
screens and shades... Other." The subject screens, having frames
of wood, are properly classifiable in this subheading.
You have requested that these screens be classified under
subheading 9701.10.00001, HTSUSA, which provides for "Paintings,
drawings and pastels, executed entirely by hand...." Such a
classification of the instant merchandise would be incorrect.
Explanatory note 97.01 (d) specifically excludes from
classification under Heading 9701 all "Hand-decorated
manufactured articles such as wall coverings consisting of hand-
painted woven fabrics, holiday souvenirs, boxes and caskets..."
because, as the note explains, "these are classified under their
own appropriate headings." Congress, in providing for the free
entry of paintings but excluding manufactured articles, such as
wall coverings or screens, apparently desired to include
paintings designed in their creation to appeal to the esthetic
sense of the observer as distinguished from those created for
some utilitarian purpose. Pitt & Scott v. United States, 18 CCPA
326, T.D. 44584 (1931). Although the explanatory note no longer
specifically mentions screens as an example of excluded
manufactured items, as did the Tariff Schedules of the United
States (TSUS), this is not a significant change: the fact
remains that screens are manufactured, utilitarian objects.
Additionally, the HTSUSA provides a specific subheading for
screens, i.e. 4421.90.4000.
Previous decisions and rulings concerning hand-painted
screens have reached varied results, depending on the facts of
each case. The facts of the instant case clearly show that the
screens in question should be classified as screens.
In Headquarters Ruling Letters (HRL's) Nos. 553522 and
553857, two screens were classified as paintings. These
screens, however, were both created by renowned artists and were
exhibited at famous art galleries as examples of fine art
objects. The screens discussed in these letters were valued in
excess of $63,000.00 and in excess of $100,000.00, respectively.
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These factors contributed to the conclusion in each case that it
was "highly unlikely" that the articles would be utilized as a
room divider or other utilitarian object.
There are other factors which may be relevant. In Sanji
Kobata et al. v. United States, C.D. 4213 (1971), folding screens
with hand-painted landscape scenes, valued from $75.00 to
$8,000.00, were held to be duty free as paintings. In that case,
a substantial amount of "use" testimony was presented which
showed that these items were almost always used as "wall
hangings" for their esthetic benefits, and not as screens. Two
indications of use that were cited in Sanji Kobata are
particularly relevant to the instant case. The court noted that
"in 80 to 100%" of the times these screens were purchased,
hanging devices were also purchased. The court also noted that
these screens were smaller than many other Japanese screens. The
court stated that "All the testimony left no doubt that the
screens in question, as distinguished from the larger, taller and
less fragile byobu screens, have never been and are not used as
screens or room dividers." Id. at 344, C.D. 4213. It was also
noted in HRL No. 553857, discussed above, that, subsequent to
importation of the screen, hardware would be placed over the
frame at the joints to prevent the panels from folding and to
permit them to be hung on walls.
Additionally, the court in Sanji Kobata pointed out that the
picture was always signed with the name of the artist and that
none of the witnesses had ever seen two pictures to be identical
because all of the paintings were painted by hand and were
original paintings.
In the instant case, the screens were not painted by
renowned artists as were the screens involved in the Headquarters
Letters discussed above: if they were, there is no proof since
they are not signed. The values of these screens, $1,000.00 to
$6,000.00, do not approach the values of the screens discussed in
the above Headquarters' Letters. There is no evidence that these
screens have ever been displayed in famous art galleries as
examples of fine art objects or that there are any plans to do
so.
Moreover, there is no evidence that these screens are
always, or even nearly always, used as "wall-hangings" solely for
their esthetic benefits, as in Sanji Kobata. The large size of
the screens would seem to prevent usage as wall hangings while
their use as screens is enhanced. As mentioned above, the
smaller screens in Sanji Kobata were contrasted with the less
fragile, larger byobu screens (which is what we have in the
instant case) that are more suited to use as screens. The
instant merchandise is not normally sold with hardware for
attachment to walls, as were the screens considered in
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Sanji Kobata, and in HRL No. 553857. In Naumes
Forwarding Service v. United States, 55 Cust. Ct. 132, C.D. 2562
(1965), the court held that the merchandise at issue in that case
was properly classifiable as screens and stated:
In their condition as imported, they are adopted
for use "free standing" on the floor but not for
attaching to walls, for which use the folding feature
is of no value. Weak testimony as to such use is
not sufficient to establish that the articles are not
screens, when other factors, such as their shape,
construction, and resemblance to the well-known
oriental folding screen proclaim that they are.
Considering the facts of this case, it seems that the instant
merchandise is much more suitable for use as screens rather than
use as "wall hangings".
In summary, these screens are manufactured items which serve
definite utilitarian purposes and are more likely to be used for
those purposes than any other. They are not of such unique
artistic value that this use will be shunned. There is no
evidence that they are objects of fine art themselves.
HOLDING:
The screens in question are properly classifiable under
Subheading 4421.90.4000, which provides for "Other articles of
wood: Wood blinds, shutters, screens and shades, all the
foregoing with or without their hardware: Other", dutiable at a
rate of 8% ad valorem. This holding is based on the information
provided to our office concerning a group of screens. If upon
closer examination of these screens you find that one or more are
signed by a renowned artist, or differ from the other screens in
any other manner that may affect their classification, it may
benefit you to submit those screens for separate consideration.
Sincerely,
John Durant, Director
Commercial Rulings Division