CLA-2 CO:R:C:T 956544 BC
Terry R. Warth, Ph.D.
The Textile Art Collection
6458 Tolhurst Court
Anchorage, AK 99504
RE: Classification of boxes covered with hand made Washi art
paper; works of art; decorative articles; Japanese Washi paper;
wood box; HRL 089978
Dear Mr. Warth:
This responds to your letter of May 25, 1994, wherein you
requested a binding classification ruling concerning boxes
covered with hand made Japanese Washi art paper. You submitted
photographs of the kind of boxes at issue. We have reviewed the
matter, and our decision follows.
FACTS:
You described the merchandise at issue as follows:
1.) Hand made, six-sided, lined lidded boxes covered with hand
made Washi art paper, measuring 5 inches across and valued
at $16 - $20 (wholesale cost, Japan);
2.) hand made, eight-sided, lined lidded boxes covered with old
Washi art paper that has been varnished, measuring 4 inches
across and valued at $27 - $35 (wholesale cost, Japan);
3.) hand made, lined lidded gift boxes covered with hand made
Washi art paper, measuring 2 1/2 inches square and valued at
$12 - $20 (wholesale cost, Japan); and
4.) lightweight, lined wooden tea boxes covered with hand made
Washi art paper, measuring 5 inches x 7 inches and valued at
$22 - $45 (wholesale, Japan), depending on the age and
rarity of the Washi paper.
Except for item #4 above, the material comprising the frames of
the boxes is not described. The paper covering is described as
traditional Japanese paper, about which you stated the following:
The finely made Washi paper from Japan is considered to
be a form of Japanese 'folk art'. . . . As this paper
making process is still being practiced today as it
originated hundreds of years ago on an individual
basis, it is considered an art form not only in Japan,
but also around the world. The items made by hand by
individual artists . . . assume numerous shapes and
forms from boxes to individually framed pieces to
origami angels hanging on the Christmas tree.
No further description of the paper, how it is made, or how the
decoration is applied was provided.
ISSUE:
Are the boxes at issue classifiable as works of art in
Chapter 97, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA)?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States (HTSUS) is accomplished 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 goods cannot be
classified solely on the basis of GRI 1, and if headings and
legal notes do not otherwise require, the remaining GRI's will
then be applied in numerical order. Further, the Explanatory
Notes (EN's) to the Harmonized Commodity Description and Coding
System (HCDCS), which represent the official interpretation of
the tariff at the international level, facilitate classification
under the HTSUS by offering guidance in understanding the scope
of the headings and GRI's. Accordingly, the GRI's and EN's are
utilized as the basis for the classification determination
discussed below. (See T.D. 89-80, 23 Cust. Bull. 379 (1989), 54
Fed. Reg. 35,127 (August 23, 1989).) (See also Totes, Inc. v.
United States, No. 91-09-00714, slip op. 92-153 (CIT September 4,
1992), 26 Cust. Bull. No. 40, 35, 37 n. 3 (September 30, 1992),
citing T.D. 89-80 and acknowledging the authority of the EN's.)
Works of Art
Chapter 97, HTSUSA, covers works of art, collectors' pieces,
and antiques. The headings of the chapter cover the following
articles: paintings, drawings, and pastels, executed entirely by
hand, other than drawings of heading 4906 and other than hand-
painted or hand-decorated manufactured articles; collages and
similar decorative plaques; all the foregoing framed or not
framed (heading 9701); original engravings, prints, and
lithographs, framed or not framed (heading 9702); original
sculptures and statuary, in any material (heading 9703); postage
or revenue stamps, stamp-postmarks, first-day covers, postal
stationery (stamped paper), and the like, used, or if unused not
of current or new issue in the country to which they are destined
(heading 9704); collections and collectors' pieces of zoological,
botanical, mineralogical, anatomical, historical, archeological,
paleontological, ethnographic, or numismatic interest (heading
9705); antiques of an age exceeding one hundred years (heading
9706).
The only heading of the chapter remotely deserving
consideration is heading 9701, and this only if the decoration is
applied to the paper in one of the described ways. The EN's for
heading 9701 provide the following regarding paintings, drawings
and pastels executed entirely by hand (HCDCS, Vol. 3, p. 1616):
This group covers paintings, drawings and pastels
(whether ancient or modern), executed entirely by hand.
These works may take the form of oil paintings, wax
paintings, tempera paintings, acrylic paintings, water-
colours, gouache paintings, pastels, miniatures,
illuminated manuscripts, pencil drawings (including
Conte drawings), charcoal or pen drawings, etc.,
executed on any material. [Bolding in original;
underlining added.]
It is clear that to qualify under this heading, an article must
be hand painted or drawn. From an examination of the
photographs, it does not appear that either method is used to
produce the Washi art paper, although without a detailed
description of how the paper is made, we do not so conclude.
Based on the information we have, we conclude that the boxes
at issue cannot be classified in heading 9701, HTSUSA. Moreover,
we believe that classification generally as a work of art is not
appropriate for the reason that the boxes do not appear to be
products of what is referred to as the "free fine arts." In
Headquarters Ruling Letter (HRL) 089094, issued August 2, 1991,
the issue of what constitutes a work of art was discussed. (See
also HRL 087577, dated November 21, 1990.) Therein, the
following was stated:
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 [United States] 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. Olivetti & 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.
We believe that the Washi art paper covered boxes at issue are of
the kind contemplated in the above quoted passage. These are
works of the decorative arts rather than the free fine arts.
They are produced by artisans and craftsmen of the kind named
above.
In addition, the ruling pointed out that articles of utility
are excluded from classification in the chapter as paintings or
sculptures. In order to be accepted as a genuine work of art, it
must be shown that the alleged work of art is not an article of
utility. See Joseph A. Paredes & Co. v. United States, 40 Cust.
Ct. 471, Abstract 61618 (1958). (However, in some instances, if
the utilitarian aspect of a work of art is clearly subordinate or
nonexistent, it can be considered a work of art. See T.D.
Downing Co. v. United States, 66 Cust. Ct. 1036, C.D. 4168
(1971), regarding sculptured vases and urns.) The boxes at issue
clearly have a utilitarian aspect. We believe that this fact
further argues against their being considered works of art for
tariff purposes. (See also HRL 087797, December 20, 1990, citing
HRL 063320, September 27, 1979.)
Finally, the EN's indicate that articles of the kind at
issue are not classifiable in the chapter covering works of art.
The EN for heading 9701, HTSUSA, provides that the following
articles are excluded from classification in the heading: "(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." (See
HCDCS, Vol. 3, p.1616.) For heading 9703, HTSUSA, the following
articles are excluded: "(b) Works of conventional craftsmanship
of a commercial character (ornaments, religious effigies,
articles of personal adornment, etc.)." (See HCDCS, Vol. 3, p.
1617.)
For the foregoing reasons, we conclude that the boxes
covered with Washi art paper are not classifiable as works of art
in Chapter 97, HTSUSA. Therefore, the boxes will be classified
as boxes in other appropriate headings.
Classification
Regarding the tea boxes, these are composite goods, not
specifically provided for, consisting of wood frames with paper
covering. As a composite good, they are classifiable under GRI
3(b) or, if that is inapplicable, GRI 3(c). These rules are as
follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods
put up in sets for retail sale, which cannot be
classified by reference to 3(a), shall be classified as
if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference to
3(a) or 3(b), they shall be classified under the
heading which occurs last in numerical order among
those which equally merit consideration.
Boxes generally are functional articles. While the tea
boxes at issue are designed to be beautiful and decorative, they
nonetheless are also functional. The wooden frame of the box
provides shape and strength, and plays a prominent role in its
function to store and preserve tea (although the box can be put
to other uses). Thus, it is the wood component of the tea box
that imparts essential character. Therefore, classification is
appropriate in heading 4420, HTSUSA. This is in accord with HRL
089978, issued September 11, 1991, which classified a wood
(particle board) tea box covered with Washi art paper in
subheading 4420.90, HTSUSA.
Because the material from which the frames of the boxes
described in items #1, #2, and #3 is unknown, we cannot make a
classification determination regarding them. However, if they
are constructed of paper or paperboard, they would be
classifiable in subheading 4823.90.8500, HTSUSA, which provides
for other articles of paper or paperboard, other, other, other,
other, other. The duty rate is 5.3% ad valorem. If the frames
are made of another material, a GRI 3 analysis would be required
to determine classification.
HOLDING:
The wooden tea boxes are classifiable in subheading
4420.90, HTSUSA, which provides for jewelry boxes, . . . cigar
and cigarette boxes, . . . and similar boxes . . . of wood:
other. If the tea boxes are lined with textile fabrics, they are
classifiable in subheading 4420.90.6500, HTSUSA. If they are not
lined with textile fabrics, classification is in subheading
4420.90.4500, HTSUSA. The General Column 1 rate of duty for the
latter provision is 6.7% ad valorem. For the former provision,
it is 2.2 cents/kg, plus 2.9% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division