CLA-2 CO:R:C:G 087170 WAW
Mr. Phillip B. Fleishman
Treasurer
IMARI, Inc.
40 Filbert Avenue
Sausalito, CA 94965
RE: Reconsideration and Revocation of Headquarters Ruling Letter
(HRL) 086047; Hand-Painted Japanese Screen; Work of Art
Dear Mr. Fleishman:
This letter is in response to your request for a
reconsideration of HRL 086047, dated February 28, 1990,
concerning the tariff classification of Japanese screen paintings
under the Harmonized Tariff Schedules of the United States
Annotated (HTSUSA). Samples were not submitted along with your
request; however, included in the literature which you provided
for our review were photocopies of various screen paintings.
FACTS:
The instant merchandise consists of various hand-painted
screens which will be imported from Japan. These screens are the
folding, "byobu" type, averaging in age from 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 screens range in size from the two panel screen
which measures approximately 60 inches X 60 inches to the full
six panel screen which measures approximately 70 inches x 146
inches. The screens range in value from $1,000.00 to $6,000.00.
There is painting on only one side of the screen. The importer
has indicated that accompanying the screens, he imports special
screen hanging hardware from Japan and supplies this hardware
with almost every screen that is sold. These particular screens
are not signed by the artists and some of them were painted at a
particular school of painting in Japan, whereby several art
students work on the same screen.
In HRL 086047, dated February 28, 1990, Customs classified
the instant merchandise under the provision for "Other articles
of wood: Wood blinds, shutters, screens and shades, all the
foregoing with or without their hardware: Other" in subheading
4421.90.4000, HTSUSA. The importer disagrees with the
aforementioned classification and maintains that the merchandise
is more properly classified under subheading 9701.10.0000,
HTSUSA, as a painting executed wholly by hand, and therefore
entitled to duty free treatment under the HTSUSA.
ISSUE:
Whether the sample merchandise is classified as a wood
screen under subheading 4421.90.4000, HTSUSA, or whether it is
entitled to duty free treatment under subheading 9701.10.0000,
HTSUSA, as paintings, drawings and pastels executed entirely by
hand.
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.
Subheading 9701.10.0000, HTSUSA, provides for "Paintings,
drawings and pastels, executed entirely by hand. . . ." Articles
which are classified under this subheading are entitled to duty
free treatment under the HTSUSA. The Explanatory Notes to
Heading 9701, HTSUSA, which constitute the official
interpretation of the tariff at the international level, however,
state that "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.), . . . are classified under their own appropriate
headings." Thus, if the subject painted article is considered a
screen, the above Explanatory Note would preclude free entry of
the article under the HTSUSA. However, if the screen is merely
the surface upon which the artist has executed his work, the
finished creation may still be considered within the scope of the
term "painting" in subheading 9701.10.0000, HTSUSA. Congress in
providing for the free entry of paintings but excluding
manufactured articles, such as screens, apparently desired to
include paintings designed in their creation to appeal to the
aesthetic sense of the observer as distinguished from those
created for some utilitarian purpose. Pitt & Scott v. United
States, 18 CCPA 326, 328, T.D. 44584 (1931).
The issue we are asked to address in this case is whether
the sample merchandise should be assessed with duty as a "wood
screen" or whether it is entitled to duty free entry as a
"painting" as claimed by the importers.
In the case of Sanji Kobata et al. v. United States, C.D.
4213 (1971), the Customs Court set forth certain guidelines in
determining whether a Japanese folding screen should be
classified as a "wood screen" or as a "painting" for
classification purposes. In Sanji Kobata, the court held that
Japanese folding screens with hand-painted landscape scenes,
which were estimated to be valued from $75.00 to $8,000.00, were
duty free as paintings, rather than dutiable as wooden screens.
The court stated that an examination of the artistic merit of the
articles left no doubt that painting was an important element
which contributed to the merchandise, its beauty and aesthetic
value. In Sanji Kobata, the court relied on the case of United
States v. Quon Quon Company, 46 CCPA 70, C.A.D. 699 (1959), for
the proposition that use is of paramount importance in
determining the identity of an article. Thus, in Sanji Kobata, a
substantial amount of "use" testimony was introduced to
demonstrate that the Japanese folding screens were primarily used
as paintings to adorn a wall, and not as screens. The court
stated that "[a]ll of 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."
In Sanji Kobata, the court also noted that whenever sales
were made of the merchandise in question,"in 80 to 100 percent of
the times the purchaser also purchased hanging devices." The
court further stated that it is clear, that the hardware is
purchased so that the merchandise may be hung on the walls.
Additionally, in Sanji Kobata, the testimony was introduced
that the picture is always signed with the name of the artist.
The witnesses stated that they have never seen two pictures to be
identical, since all of the paintings are painted by hand and
are original paintings.
Furthermore, in HRL's 553522 and 553857, dated March 26,
1989 and September 3, 1986, respectively, two folding screens
were classified as paintings. In HRL 553522, the screen was
painted by a renowned artist, exhibited at famous art galleries
as an example of a fine art object, and valued in excess of
$100,000.00. In that case, Customs concluded that it was highly
unlikely that the screen would be utilized as a room divider or
other utilitarian object, since its value lies almost
exclusively in its identity as an unusual art object in the
character of a painting. In HRL 553857, the antique screen was
classified under the provision for paintings executed wholly by
hand. In that case, the article was valued in excess of
$63,000.00. In addition, subsequent to importation, hardware
was placed over the frame at the joints to prevent the panels
from folding and to permit them to be hung on walls. Customs
stated that the elaborate paintings on the screen outweighed any
utilitarian purpose the screen may fulfill.
Based on the new information provided by Mr. Fleishman in
his letter of May 14, 1990, it is apparent that the merchandise
in the instant case is similar to the merchandise described in
the Sanji Kobata case and other Headquarters cases cited here.
The sample screens are unique works of art which are designed to
be used as wall hangings rather than as screens or room dividers.
The literature reveals several types of screens on display as
wall hangings. All of the merchandise is painted by hand, and no
two screens are identical. With regard to the absence of a
signature on several of the paintings, Mr. Fleishman has stated
that often a master painter of a particular school of painting
will not sign his name in deference to the acknowledged leader of
that school. Thus, the absence of a signed painting is not an
indication that the screen is not the work of a renowned artist.
Furthermore, Mr. Fleishman has stated that the screens are
almost always imported with accompanying wall hanging hardware so
that the merchandise may be mounted on the walls. The hardware
is not sold separately, since according to Mr. Fleishman, it is
used to mount screens in the majority of cases.
Moreover, the price of the screens in the instant case is
comparable to the selling price of the screens in Sanji Kobata.
In addition, there is evidence that one of the "byobu" screens is
presently in the permanent collection of the Asian Art Museum in
San Francisco.
Accordingly, based on the foregoing additional information
submitted by Mr. Fleishman, and on our reconsideration of the
subheadings at issue in this case, we have determined that our
original classification of the article as a screen under
subheading 4421.90.4000, HTSUSA, was erroneous, and that the
merchandise is more properly classified as a painting under
subheading 9701.10.0000, HTSUSA.
HOLDING:
The sample screens are properly classifiable under
subheading 9701.10.0000, HTSUSA, which provides for paintings,
drawings and pastels, executed entirely by hand. Articles
classified under this provision are entitled to be entered into
the United States duty free.
HRL 086047 is revoked in accordance with Section 177.9(d) of
the Customs Regulations (19 CFR 177.9(d)).
Sincerely,
John Durant, Director
Commercial Rulings Division