CLA-2-71:OT:RR:NC:N4:433
Cyril J. Sparagna
Vice President
Global Art Services Co. Inc.
259 Barton Avenue
Patchogue, NY 11772
RE: The tariff classification of “Jeweled Tapestry” from Switzerland.
Dear Mr. Sparagna:
In your letter dated October 27, 2014, on behalf of Kathryn Bonanno, PG. FGA, Inc., you requested a tariff classification ruling. A declaration from “Cristofol Paris” discloses that their workshop created and manufactured the “gold and precious stones carpet” in Paris, France – as described on Gubelin Certificate No. 0911149 dated November 23, 2009. This gold and precious stones carpet is now being referenced to as the jeweled tapestry.
Additional information was received by the Port of JFK in the form of a declaration by Kathryn Bonanno, an accredited gemologist, attesting to the tapestry as a work of art. Also included in the declaration was the intrinsic value of the materials in the form of a material breakdown table.
The item is described as a one of a kind jeweled tapestry, taken from a painting and transformed into reality upon special request to be presented to an Asian Royal family. The tapestry consist of 383.39 Troy Ounces of 18K gold weighing 15.90 kilos, 511.64 carats of diamonds, 727.31 carats of pink sapphires, 4,834.26 carats of blue sapphires, 5,299.31 carats of yellow sapphires, 987.50 rubies and 1,709.80 carats of emeralds. The gold forms the backdrop (setting) of the tapestry that holds the precious gemstones in place, of which the gold is not visible when viewed from the front. The tapestry measures approximately 42 inches in length by 24 inches in width, and has a shiny gold color base metal bar wrapped in gold color tassels, which is used to suspend the tapestry as a wall hanging. Not taking into account the creative artistry of the tapestry, nor the notoriety of ownership of the tapestry, the item itself, based on the intrinsic value of the materials is significantly valued.
You have indicated, as well as the workshop of Cristofol that the gold and precious stones carpet, a/k/a the jeweled tapestry, is a unique piece of art. Chapter 97 of the Harmonized Tariff Schedule of the United States (HTSUS), provides for Works of Art, Collectors’ Pieces and Antiques.
In order for an article to be classified in Chapter 97, HTSUS, 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.
Moreover, in order to be classified as a “work of art” in Chapter 97, HTSUS, 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. However, 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 art of which painting and sculpture are the types.” See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916); HRL063320, dated September 27, 1979. The Explanatory Notes (ENs) to Chapter 97, HTSUS, 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.
Upon further reading of the ENs to Chapter 97, HTSUS, specifically heading 9703 “Original Sculpture and Statuary,” one finds that sculpture and statuary of the free fine arts is created in the round, in relief and in intaglio. These works may be produced by two processes. In the first process, the sculptor carves the work direct from hard materials. In the second process, the sculptor models soft materials into figures; these are then cast in bronze or in plaster, or are fired or otherwise hardened, or they may be reproduced by the sculptor in marble or in other hard materials. We find that the jeweled tapestry does not fall within one of the prescribed methods of sculpture and statuary, or the two processes described, and therefore is not classifiable within heading 9703, HTSUS.
When terms are not defined in the HTSUS or the ENs to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Online Oxford English Dictionary defines a “goldsmith” as a worker in gold; one who fashions gold into jewels, ornaments, articles of plate, etc.
Legal Note 10 to Chapter 71, HTSUS, states: For purposes of heading 7114, the expression “articles of goldsmiths’ or silversmiths’ wares” includes such articles as ornaments, tableware, toilet-ware, smokers’ articles and other articles of household, office or religious use. The ENs to heading 7114, HTSUS, provide in pertinent part, that that goods of this heading may contain pearls (natural, cultured or imitation) and precious and semiprecious gemstones (natural, synthetic or reconstructed). Accordingly, it is our opinion that the jeweled tapestry falls within the decorative arts of goldsmith wares.
The applicable subheading for the jeweled tapestry will be 7114.19.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles of goldsmiths’ or silversmiths’ wares and parts thereof, of other precious metal whether or not plated or clad with precious metal. The rate of duty will be 7.9 percent ad valorem
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at E-mail address: [email protected].
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division