CLA-2 CO:R:C:F 089094 STB
Ms. Leona Lattimer
Northwest Coast Indian Art
1590 West 2nd Avenue
Vancouver, British Columbia
Canada V6J 1H2
RE: Steamed-bent cedar box, hand-painted drum, Whaler's hat
constructed of woven grass, bark and root.
Dear Ms. Latimer:
This letter is in response to your letters of November 9,
1990 and March 14, 1991 concerning the classification of several
items which are identified as Canadian Indian Art and include a
steamed-bent cedar box, a hand-painted drum, and a whaler's hat
constructed of woven grass, bark and root. Pictures of the items
were submitted with the request.
FACTS:
The steam bent box is described as offering a "unique
surface for Native Indian Artists." The side of the box is made
from one piece of wood that is cut and grooved and then steam-
bent. Many artists carving on these pieces use the four sides of
the box to carve all sides of the crest or animal. The box
depicted in the accompanying picture is of red cedar, with a
design of a bear. It was created by Larry Rosso and is indicated
as having a retail price of $6,000.00. It measures 18 inches by
18 inches by 23 inches. Normally, the individuals creating these
items acquire a suitable piece of cedar wood, steam-bend the
cedar themselves, and then carve and/or paint the bent box. Each
artist bends his own box and individually paints it. Boxes can
be carved without any painting, carved with painting, or just
painted.
The drums are constructed of various animal hides and then
painted. Two photos were submitted, both of which depict drums
constructed of deer skin. One of the drums is by Reg Davidson,
has a 23" diameter, and retails for $1,200.00. The other drum
pictured is by Art Thompson, has a 15" diameter, and retails for
$900.00. According to the inquirer, the artists make the entire
drum, including the "hoop." They acquire the skin either by
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purchase or trading. Normally, the skins are in a raw state and
must be cleaned, scraped and marinated in lime solution to
prevent deterioration. All this preparation is performed by the
artist.
The final item to be described is the woven hat. The
inquirer states that weaving in grasses, bark and roots is a
tradition to the Northwest Coast Natives. Making a hat is labor
intensive and takes three bundles of spruce root to make one hat.
Two hats are depicted; the first is by Isabel Rorick, measures 13
inches by 15 inches in diameter at the base, and retails for
$5,000.00. The second is by Jessie Webster, measures 9-1/2
inches by 10 inches in diameter and retails for $2,000.00.
According to the inquirer, all the artists involved are
recognized artists.
ISSUE:
Should the subject items be classified as "works of art" in
Chapter 97 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA)?
If any or all of the subject items are not classified as
works of art, what is the proper classification?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
legal framework 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.
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.
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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
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].
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Thus, the nature of the utilitarian aspect of the instant
articles is also a consideration in the determination of the
applicability of Chapter 97, HTSUSA.
The Explanatory Notes to the HTSUSA constitute the official
interpretation of the tariff at the international level. Because
the provision in question here is a four digit, or international
level provision, they are particularly pertinent. The
Explanatory Notes to heading 9701, HTSUSA, provide the following
guidelines for determining which goods are not included within
the scope of the tariff heading terms which include "paintings,
drawings and pastels":
This group also excludes:
* * * *
(d) 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.), these are classified under their own
appropriate headings.
Finally, then, the question arises as to whether any or all of
the items involved should be considered hand-decorated
manufactured articles.
Examination of the above-cited HTSUSA language, Explanatory
Notes, court decisions and Customs rulings leads us to the
conclusion that the subject articles do not constitute the types
of "works of art" that are entitled to duty-free treatment under
Chapter 97. First, we note that "boxes" are specifically
excluded from being considered a painting in Chapter 97, HTSUSA,
in Explanatory Note (d), above. In HRL 087577, dated November
21, 1990, Customs ruled that hand-painted boxes from Russia were
not classifiable in Chapter 97.
All of these items, including the boxes (carved, painted or
both) are more akin to hand decorated manufactured articles and
items of the decorative or industrial arts. Moreover, these
items possess a utilitarian function. In your letter dated
November 9, 1990, you state that you do not believe that these
items will be purchased for their utility aspects but rather for
their artistic value. It is our determination, however, that
none of these items can be said to have a utilitarian purpose
that is "clearly subordinate or nonexistent" or a utilitarian
character that is "wholly lost in its artistic character." The
given prices of these items are not unreasonably high for items
that may be used in a utilitarian manner. Additionally, the
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hats cannot be classified in Chapter 97, HTSUSA, because there is
no provision for weavings and they do not qualify as sculptures.
The proper classification of these items, therefore, is in
the headings and subheadings which most specifically apply to
them. The steam-bent box is classifiable in the subheading for
jewelry boxes and similar boxes; the drum is classifiable in the
eo nomine provision for drums; the hat is classifiable in the eo
nomine provision for hats and other headgear, not sewed.
HOLDING:
The box described as a "steam-bent box" is classifiable
under subheading 4420.90.4000, HTSUSA, the provision for wood
marquetry and inlaid wood...other, jewelry boxes...other, not
lined with textile fabrics. The applicable duty rate is
6.7% ad valorem. The painted drum is classifiable under
subheading 9206.00.2000, HTSUSA, the provision for percussion
musical instruments (for example drums, xylophones, cymbals,
castanets, maracas), drums. The applicable duty rate is
4.8% ad valorem. The hats are classifiable under subheading
6504.00.6000, HTSUSA, the provision for hats and other headgear,
not sewed. The applicable duty rate is 5% ad valorem plus $1.02
per dozen.
If otherwise qualified, the articles are entitled to a
reduced duty under the United States-Canada Free-Trade Agreement.
The applicable duty rates will be 4.6% ad valorem for the steam-
bent box, 1.9% ad valorem for the drums and 3.5% ad valorem plus
$1.02 per dozen for the hats.
Sincerely,
John Durant, Director
Commercial Rulings Division