CLA-2 CO:R:C:T 951170 jb
Mr. Derek Thomas
Derek Thomas Enterprises Ltd.
Executive Centre
151 York Street
London, Ontario N6A 1A8
Canada
RE: Classification of garments as "works of art" v. men's
jackets or vests.
Dear Mr. Thomas:
This is in reply to your letter dated January 23, 1992,
regarding the classification of garments under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
The samples submitted for which you are requesting a binding
ruling classification are sixteen photographs, approximately 4
inches x 6 inches, four per sheet enclosed with plastic,
depicting ordinary men's jackets or vests transformed by the
artist into a very unique, one of a kind work of art.
The merchandise has been imported into Canada from a Florida
based artist, who is employed on a temporary 12 month Canadian
work visa. While in Canada she wishes to continue doing business
with her clients in the U.S.A. and will be shipping goods out of
Canada.
The items being shipped are men's jackets and vests which
will be purchased in Canada. The artist then works on each item
individually using a variety of paints, beads, jewels, lace and
small wooden figures. The artist is able to transform an
ordinary man's jacket or vest into a very unique, one of a kind
work of art.
The issue presented for our consideration is whether the
artist can transform ordinary men's jackets or vests, by
application of various materials and techniques, into a very
unique, one of a kind work of art classifiable in subheading
9701.10.0000, HTSUSA.
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation (GRI's). GRI 1
requires that classification be determined according to the terms
of the headings and any relative section or chapter notes. Where
goods cannot be classified solely on the basis of GRI 1, the
remaining GRI's will be applied in the order of their appearance.
Chapter 97, HTSUSA, provides for works of art. It covers
works executed entirely by hand in a variety of forms (for
example, oil paintings, wax paintings, tempera paintings, acrylic
paintings, water-colours, etc.), executed on any material.
The Explanatory Notes to heading 9701, Section XXI, A(d)
exclude from that chapter:
Hand decorated manufactured (emphasis added) 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.
Similar language was found under the previous tariff, Tariff
Schedules of the United States (TSUS), in defining "work of art".
Though the HTSUSA has replaced TSUS, the latter is often used as
a guideline because of the similarity in terms and definitions of
certain provisions.
In HRL 025378, dated February 16, 1973, under TSUS, the
dutiable status of 100 embroidered silk pictures from the
People's Republic of China was discussed. That ruling provided
in part that:
item 765.25, TSUS, of this subpart, provides for the free
entry of original works of the free fine arts in any media
including, but not limited to, applied paper and other
materials, manufactured or otherwise, such as are used on
collages. Hand-embroidered pictures may be considered as a
media of the free fine arts under this provision. However,
this provision is limited to creations that are original in
design, conception, and execution. The creation must be of
such fine quality and high artistic talent so as to be
recognized as examples of the free fine art by recognized
art authorities, as distinguished from works that are
representative of the decorative or industrial arts...
Embroidered pictures which do not qualify under the
provision for original works of the free fine arts would
probably be classified under the provision for silk
furnishings, not ornamented, in item 367.45, TSUS.
In HRL 022202, dated August 31, 1972, it was determined that
the dutiable status of two articles made by Mexican Indians also
did not qualify for inclusion in the provision for works of art
of 765.25 TSUS. This was because it appeared that one of the
articles (tabla or cuadro) was better qualified as an article of
wool; the chief value deriving from the wool composition. The
second article, a clay sculpture of a bird covered in multi-
colored wool yarn, was also classified as an article of wool due
to the absence of proof that the birds were ceramic ware and
produced by professional sculptors or were directly made from
molds made from original models produced by professional
sculptures.
Similarly, in HRL 088091, dated November 9, 1990, regarding
the classification of bridal garments made of goat skin and glass
beads, and HRL 087771 dated November 15, 1990, concerning hand
embroidered articles, it was determined that neither of those
articles qualified as "works of art" under chapter 97, HTSUSA.
In both instances, despite the evident craftsmanship and beauty
of the articles, the merchandise was classified according to its
constituent materials.
Despite the ability of the artist to transform ordinary
men's jackets or vests into art clothing, their classification
does not appear to be within the Works of Art provision. The
determinative factors which lead us to this conclusion can be
summed up as follows:
(1) the wearable art is still worn as clothing
(2) the merchandise is excluded by EN of heading 9701,
Section XXI, A(d), which excludes hand decorated
manufactured articles
(3) the garments, though of fine craftsmanship and aesthetic
appeal, are not of the fine quality recognized as
examples of free fine art by recognized art authorities.
As you did not provide us with any samples, we cannot
determine, at this time, the proper headings or subheadings for
the jackets or vests. Should you still want to pursue
classification, you should be prepared to forward samples of the
garments to our Customs office in New York. Upon receipt of
those articles, we will be prepared to issue a binding ruling
classification.
Sincerely,
John Durant, Director
Commercial Rulings Division