CLA-2 CO:R:C:G 087797 WAW
Ms. Joan Andrews Taube
4009 Ellicott Street
Alexandria, VA 22304
RE: Native Canadian Carved Masks; Work of Art; Original
Sculptures and Statuary; Heading 9703
Dear Ms. Taube:
This letter is in response to your inquiry, dated August 18,
1990, addressed to the District Director in our Buffalo, N.Y.
office, concerning the tariff classification of a Native Canadian
carved mask under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). Neither a sample nor photograph
depicting the article at issue was submitted along with your
request for a ruling.
FACTS:
The sample merchandise is described as a Native Canadian
carved mask. It is made of red cedar wood which has been hand-
carved and hand-painted.
The merchandise was entered into the United States on
August 1, 1990. At that time, duty in the amount of $35.96 was
paid on what you describe as a Native Canadian carved mask. On
August 18, 1990, you sent a letter to the District Supervisor of
the Buffalo Region protesting the classification and duty charge
on the merchandise which you imported into the United States.
The merchandise was classified under subheading 4421.90.90
HTSUSA, as "other articles of wood" and subject to a duty rate of
5.1 percent ad valorem. In another letter dated August 19, 1990,
you wrote to this office requesting that we reconsider the
classification of the Native Canadian carved mask. You maintain
that Customs erred in its classification of this article and that
the article is more properly classified as a work of art in
subheading 9703.00.0000, HTSUSA, and that you should be entitled
to a refund of the duties that you paid.
ISSUE:
Whether the subject merchandise is classifiable as "works of
art" under the duty-free provision in Chapter 97, HTSUSA, or
whether the article is classifiable as an other article of wood
in Chapter 44, HTSUSA and subject to a duty rate of 5.1 percent
ad valorem.
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.
You have requested that the sample merchandise be classified
under Heading 9703, HTSUSA, as a "work of art" and entitled to
duty free status. In support of your claim you state the
following:
The mask is an original work of art by a well known
British Columbian carver. It is signed and is a one-
of-a-kind piece. Documentation to this fact was
provided to the Customs Service by the Vancouver
Museum.
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 as
distinguished from the works of skilled craftsman that are
representative of the decorative or industrial arts. That
court's interpretation of the provision concerning "original
sculptures" under the TSUS is equally applicable to the
successor provision in Chapter 97.
The Customs Regulations set forth specific requirements
which apply to the entry of works of art classifiable in Heading
9703, HTSUSA. First, the invoices covering these articles must
show whether they are originals, replicas, reproductions, or
copies, and also the name of the artist who produced them, unless
upon examination the appraiser is satisfied that such statement
is not necessary to properly determine the nature of the article.
19 CFR 10.48(a). In addition, a declaration by the artist who
produced the article must be presented to indicate whether it is
original, or, in the case of sculpture, the original work or
model or one of the first ten castings, replicas, or
reproductions made from the original work or model must be shown.
19 CFR 10.48(b)(1). With regard to articles claimed to be duty
free under Heading 9703, HTSUSA, the District Director may
require proof of the character of the article, including, when
necessary, certificates from curators or other recognized
authorities on art, that the imported article represents some
school, kind, or medium of the free fine arts. 19 CFR 10.48(e).
Under the TSUS, the Customs Service interpreted the
provision covering original sculptures and statuary to exclude
articles of utility for industrial use. Headquarters Ruling
Letter (HRL) 063320, dated September 27, 1979, states:
Beautiful, rare, unique and creative cigarette boxes,
card boxes, clocks, picture frames, articles of jewelry
and similar articles of utility are generally precluded
from coverage under the provisions in Subpart A, Part
11, Schedule 7, TSUS. Normally, the determinative
factor is not whether the importer intends to use the
article in a utilitarian manner but whether the article
can be used for a useful purpose.
The above provision is equally applicable to the successor
provision in the HTSUSA.
In order to be classified as a "work of art" in Chapter 97,
HTSUSA, an article 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 craftsman. (Emphasis added). However, the
Customs Court has determined that although works by such
professions may be 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); HRL 063320, dated September 27, 1979. The
Explanatory Notes, which provide the official interpretation of
the tariff at the international level, 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.
Inasmuch as the sample wood masks appear to be of the
decorative or industrial kind, rather than works of the free fine
arts by a professional, they are not within the purview of
heading 9703, HTSUSA, and are not entitled to duty free entry as
original sculptures and statuary.
In addition, for an article to be classified as a work of
art under subheading 9703.00.0000, HTSUSA, it must be created by
a professional artist. Customs has determined that in order to
show that a person has achieved professional artist status, the
artist must be either: (1) a graduate of a course in fine art,
or in sculpture, from a recognized school of fine art, not
industrial art; or (2) recognized in aret circles as a
professional by the acceptance of his or her works in public
exhibitions limited to the free fine arts. CIE 160/56, dated
February 6, 1956. Customs has stated that this information can
be provided in the form of a resume or biography. In addition,
to the professional artist status, each work must be of such fine
quality and high artistic merit so as to be recognized as
examples of the free fine arts by certain art authorities. CIE
160/56, dated February 6, 1956; Headquarters Ruling Letter (HRL)
063320, dated September 27, 1979; HRL 063591, dated March 3,
1990.
In the instant case, we have received no information, short
of your statements and a brief biography of the artist, relating
to the rare and special nature of the wood mask or the status of
the maker of the mask. The artist involved here has not shown
that he has achieved professional artist status, i.e., that he
has graduated from a recognized school of fine arts or that he is
recognized in art circles as a professional by the acceptance of
his works in public exhibitions limited to the free fine arts.
The only art establishment that the artist in this case has
exhibited in is the British Columbia Provincial Museum, with
which we are unfamiliar. Thus, failing to satisfy the criteria
for professional artist status, we have concluded that the mask
does not meet the requirements for a work of art in subheading
9703.00.0000, HTSUSA.
In sum, based on the information that we have received from
you, it is the determination of this office that the Native
Canadian carved mask at issue does not qualify for duty free
treatment under subheading 9703.00.0000, HTSUSA. The mask
does not qualify as a work of the "free fine arts," but rather is
a work of art that is more representative of the decorative or
industrial arts. In addition, the creator of the mask does not
qualify as a recognized professional sculptor for the purposes of
this tariff provision. Therefore, the mask is classifiable under
the provision for "Other articles of wood."
This decision pertains only to the application of the tariff
provision and relevant regulations to the facts available to us
about this imported article. This ruling does not presume to
judge the artistic merit of the article nor the talent of the
creator of the article. Further, this ruling expresses no
opinion on the merit of the art collection of the British
Columbia Provincial Museum.
HOLDING:
Based on the foregoing analysis, the carved wooden mask is
classifiable under subheading 4421.90.9040, HTSUSA, which
provides for Other articles of wood: Other: Other: Other.
Articles classified under this subheading are subject to a duty
rate of 5.1 percent ad valorem. We regret that we are unable to
refund any of the duties that you paid upon entering the United
States with the subject merchandise.
Inasmuch as we are treating your letter to the District
Director, Buffalo as a legal protest of the classification under
19 U.S.C. 1514, your protest is hereby denied.
Sincerely,
John Durant, Director
Commercial Rulings Division