CLA-2 CO:R:C:F 951896 STB
Mr. Michael D. Kaydouh
Michael D. Kaydouh and Associates
1311 Vincent Place
Mclean, Virginia 22101-3615
RE: Russian Kovsh
Dear Mr. Kaydouh:
This is in response to your May 8, 1992, inquiry requesting
the tariff classification of a Russian kovsh. Descriptive
literature and a picture of the item were submitted with your
inquiry.
FACTS:
The subject article is a traditional silver Russian kovsh (a
device used in the sixteenth century to dip beer) with the
engraving of a man riding a horse protruding from the bowl-like
structure of the kovsh. The item has a handle decorated in the
Old Russian style. The description states that the kovsh was
made by the House of Faberge with the Faberge mark below the
Imperial warrant. The item is engraved to show that it was made
approximately in the year 1909. An inventory number (24682) is
provided for the kovsh.
You state that the kovsh has lost its function as a beer
dipper in the last few centuries and has now become an object
which one would present to another "upon entering someone's home
or at ceremonial events signifying Russian hospitality."
ISSUE:
Whether the kovsh should be classified as a work of art
(sculpture) or as an article of silversmith's wares?
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LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (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.
First we must determine whether the kovsh is classifiable as
a work of art in Chapter 97, HTSUSA. If classified therein, the
proper heading would be 9703.00.00, HTSUSA, the provision for
"Original sculptures and statuary, in any material."
In order for an article to be classified as sculpture or
statuary in Chapter 97, 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.
Thus, 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
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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.
One important factor that Court decisions and prior Customs
rulings have utilized in making the "work of art" determination
is the professional status of the artist. Normally, the artist
must be either a graduate of a course in fine art or recognized
in art circles as a professional by the acceptance of his or her
works in public exhibitions limited to the free fine arts. This
information can be provided in the form of a resume or biography.
In addition, each work must be of such fine quality and high
artistic merit that it is recognized as an example of the free
fine arts by certain art authorities. The artwork is generally
signed by the artist.
It is our determination that the Russian kovsh is properly
classified as an item of the "industrial or decorative" arts and
not as a Chapter 97 work of art. It is the work of a
silversmith. We note that the courts have specifically mentioned
the work of "goldsmiths" (U.S. v. Olivotti, cited herein) as one
of the several types of works not included as a work of the free
fine arts, "beautiful and artistic though they may be."
HOLDING:
The Russian kovsh is classified in subheading 7114.11.70,
HTSUSA, the provision for articles of goldsmiths' or
silversmiths' wares and parts thereof, of precious metal or of
metal clad with precious metal, of silver, whether or not plated
or clad with precious metal, other. The general column one rate
of duty is 6 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division