CLA-2 CO:R:C:F 950127 STB
Mr. Robert L. Meuser
Thompson & Company
1001 G Street, N.W.
7th Floor East
Washington, D.C. 20001
RE: Lacquer Boxes from Russia
Dear Mr. Meuser:
This letter is in response to your letter of August 13,
1991, requesting the tariff classification of hand-painted
lacquer boxes imported from the village of Palekh, Russia.
Descriptive literature illustrated with photographs were
submitted with your request. Actual samples of various boxes
were examined by Customs personnel during a meeting at Customs
Headquarters at which time you also presented a videotape
concerning the history, making and painting of the boxes.
FACTS:
This merchandise is commonly known as Russian lacquer boxes.
These boxes have hand-painted scenes that are often displayed on
both the lid and sides of the box, although they are sometimes
displayed only on one or the other. The boxes usually depict
scenes from Russian life, literature, history, traditions,
folklore, and, less commonly since the Russian revolution of
1917, religious history. You state that Palekh is known for its
depictions of Russian mythology and poetry. You also state that
all boxes from Palekh are decorated with original paintings only.
The boxes are constructed of papier-mache. Many non-Palekh boxes
sell at retail for as low as $100.00 (per box) whereas these
Palekh boxes normally start at $400.00 each and the price for all
boxes can go quite high. You cite $25,000.00 as a maximum price
for some original lacquer miniatures. Most of the boxes examined
at Customs Headquarters were marked with price tags ranging from
the $400.00 area to $1,000. Several statements from experts
attesting to the artistic merit of the boxes were submitted with
your classification request.
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The process of making the boxes prior to painting involves
both simple machinery and work by hand. Although the process of
creating the box frame takes approximately 60 days, a substantial
number are produced because of the ongoing process in which many
boxes are started on a regular basis. In addition to the boxes,
the Palekh artists execute their painting on jewelry, plates, and
plaques.
ISSUE:
Whether the subject merchandise is classifiable as paintings
under the duty-free provision in Chapter 97, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), or whether the
articles are classifiable as other articles of papier-mache which
are subject to duty in Chapter 48, HTSUSA.
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 tariff schedule and any relative
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. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
Heading 4823, HTSUSA, provides, inter alia, for other
articles of paper pulp, paper and paperboard; subheading
4823.90.2000, HTSUSA, provides more specifically for other
articles of papier-mache. The subject boxes, constructed of
papier-mache, are properly classifiable therein.
You have requested that these boxes be classified in heading
9701, HTSUSA, the provision for paintings and other items and
more specifically in subheading 9701.10.00, HTSUSA, the provision
for "Paintings, drawings and pastels." Although Customs notes
the artistic merit of the paintings displayed on many of these
boxes, it is our determination that classification in subheading
9701 would be incorrect. In prior rulings, Customs has ruled
that items similar to the subject boxes are excluded from Chapter
97 (the "Works of Art" chapter) by Explanatory Note 97.01(A)(d)
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which excludes "[H]and decorated manufactured articles such as
wall coverings...holiday souvenirs, boxes (emphasis added) and
caskets" and other items. The EN adds that "these are classified
in their own appropriate headings." Several prior Customs
rulings have denied 9701 classification to merchandise based, in
part, on the conclusion that the items were "hand-decorated
manufactured articles." These rulings include Headquarters
Ruling Letter (HRL) 087577, dated November 21, 1990, which
concerned Russian lacquer boxes very similar to those at issue
here--and also constructed of papier-mache, and HRL 951170, dated
May 26, 1992, which concerned hand-painted and decorated
clothing.
Other Customs Rulings have denied classification as
paintings to items on the basis that they were "akin to" or
"produced in a manner similar to" manufactured articles and
therefore were not transformed into paintings by the application
of decoration and painting to the exterior. These rulings include
HRL 089094, dated August 2, 1991, (hand-painted drum), HRL
089401, dated September 4, 1991 (hand-painted suncatchers on
glass) and HRL 088792, dated November 22, 1991, (hand-painted
decorative fans).
These boxes are "hand decorated manufactured articles"; at
the very least they are "akin to" and "produced in a manner
similar to" manufactured articles and are thus not transformed
into items classifiable as paintings by the application of
painting on the exterior. When Congress included "paintings" in
the duty free provisions of Chapter 97, it was not contemplated
that any article displaying a painting should be classified
therein even though a literal application of the EN's would seem
to qualify some such articles as paintings. "It is not at all
unusual to hold that a tariff term does not include everything
literally within the term...." United States v. Andrew Fisher
Cycle Co., 57 CCPA 102, C.A.D. 986, 426 F.2d 1308, 1311-1312
(1970).
While it is true that some canvas made for use in oil
painting is "manufactured" to some extent, there is no other
utilitarian purpose for that item. The Russian boxes, however,
fulfill the utilitarian purpose common to all boxes. Customs and
the courts have adopted a very strict position against allowing
the classification of utilitarian objects in Chapter 97.
The exclusion of utilitarian articles from classification in
Chapter 97 has existed for a substantial time, including under
the former Tariff Schedules of the United States (TSUS). In HRL
053111, dated January 17, 1978, Customs considered framed glass
paintings intended to be used as table tops. Customs stated that
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regardless of whether these items are hand-painted or whether
they possess artistic merit, any of the paintings "which belong
to a class or kind of article chiefly used as table tops or other
parts of furniture would not be eligible for free entry since
articles of utility are also precluded from entry as works of
art." In HRL 063411, an information paper dated November 7,
1979, Customs stated that "Beautiful, rare, unique and creative
cigarette boxes, card boxes, clocks, picture frames, articles of
jewelry and similar articles of utility are generally precluded"
from any of the work of art provisions. Customs continued by
stating that "[N]ormally, 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."
Customs has continued to apply a strict test regarding this
issue under the HTSUSA. In several of the rulings previously
cited and described, i.e., HRLs 087577, 951170, and 089094, the
utilitarian aspect of the articles was specifically mentioned as
a major factor for the denial of classification in subheading
9701.
In Sanji Kobata et al. v. United States, 66 Cust. Ct. 341,
C.D. 4213 (1971) (Re, J.), which you cite extensively in your
correspondence, the court held that various hand-painted Japanese
folding screens were classifiable as paintings rather than as
wood screens. The court based its holding on the artistic value
of these items and the fact that these two dimensional screens
were imported for use as wall-hangings and were in fact hung and
displayed on walls in a manner identical to that of paintings.
Customs cited Sanji Kobata and arrived at a similar conclusion
concerning other Japanese screens in HRL 087170, dated September
14, 1990. Sanji Kobata and HRL 087170 are not outcome
determinative with respect to the Russian boxes. Artistic merit
was only one factor in the classification of the screens as
paintings. The other, very important, factor was the similarity
of the screens to the type of items that would normally be
contemplated as included in the term "paintings."
It is our determination that, in addition to being displayed
in the home, these Russian lacquer boxes will often be used for
their utilitarian purpose and are quite handy for storing such
articles as jewelry, trinkets, and other small items. Whether
used in the bedroom, bath, or rooms for entertaining company, the
paintings will increase the aesthetic appeal while the storing
function is performed. While it is true that the prices of some
of these boxes may be very high and that several may be displayed
in museums, etc., the prices for a great many of the boxes are
not so extraordinary as to render their use as boxes unlikely.
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HOLDING:
The subject Russian lacquer boxes are classified in
subheading 4823.90.2000, HTSUSA, the provision for other articles
of papier-mache. The column one rate of duty is 3.1% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division