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HQ 086047


March 1, 1990

CLA-2 CO:R:C:G 086047 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.4000

Mr. Phillip B. Fleishman
Treasurer
IMARI, Inc.
40 Filbert Avenue
Sausalito, California 94965

RE: [Classification of] Hand-Painted Screens

Dear Mr. Fleishman:

This letter is in response to your letter of November 9, 1989, requesting a tariff classification for various hand-painted Japanese folding screens. Samples were not submitted with the request.

FACTS:

The instant merchandise consists of various hand-painted screens to be imported from Japan. These screens are the folding, "byobu" type, with an average age of 60 to 80 years old. They are comprised of wooden frames, covered with rice paper and held together with paper hinges. Sumi ink and water soluble colors are normally utilized in the painting of the items in question. The sizes range from the 2 panel screen at 60" x 60" to the full 6 panel screen at 70" x 146" and the values of the screens range from $1,000.00 to $6,000.00. They are painted on one side. You state that you do not normally provide "wall hanging" hardware with the screens. You also state that you do not provide floor stands because they are not necessary: the screens can stand on their own. These particular screens are not signed by the artists, and some of them were painted at "artist schools" in Japan, whereby several art students would work on the same screen. Some of this information was provided in your letter of November 9; the remainder was provided by yourself in a telephone conversation on December 21, 1989.

ISSUE: Are these screens entitled to free entry under subheading 9701.10.0000, HTSUSA, as paintings, drawings and pastels executed entirely by hand?

LAW AND ANALYSIS:

Classification under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings together with any relevant Section or Chapter notes.

Heading 4421, HTSUSA, provides for "Other articles of wood" and Subheading 4421.90.4000 provides for "Wood blinds, shutters, screens and shades... Other." The subject screens, having frames of wood, are properly classifiable in this subheading.

You have requested that these screens be classified under subheading 9701.10.00001, HTSUSA, which provides for "Paintings, drawings and pastels, executed entirely by hand...." Such a classification of the instant merchandise would be incorrect. Explanatory note 97.01 (d) specifically excludes from classification under Heading 9701 all "Hand-decorated manufactured articles such as wall coverings consisting of hand- painted woven fabrics, holiday souvenirs, boxes and caskets..." because, as the note explains, "these are classified under their own appropriate headings." Congress, in providing for the free entry of paintings but excluding manufactured articles, such as wall coverings or screens, apparently desired to include paintings designed in their creation to appeal to the esthetic sense of the observer as distinguished from those created for some utilitarian purpose. Pitt & Scott v. United States, 18 CCPA 326, T.D. 44584 (1931). Although the explanatory note no longer specifically mentions screens as an example of excluded manufactured items, as did the Tariff Schedules of the United States (TSUS), this is not a significant change: the fact remains that screens are manufactured, utilitarian objects. Additionally, the HTSUSA provides a specific subheading for screens, i.e. 4421.90.4000.

Previous decisions and rulings concerning hand-painted screens have reached varied results, depending on the facts of each case. The facts of the instant case clearly show that the screens in question should be classified as screens.

In Headquarters Ruling Letters (HRL's) Nos. 553522 and 553857, two screens were classified as paintings. These screens, however, were both created by renowned artists and were exhibited at famous art galleries as examples of fine art objects. The screens discussed in these letters were valued in excess of $63,000.00 and in excess of $100,000.00, respectively.

These factors contributed to the conclusion in each case that it was "highly unlikely" that the articles would be utilized as a room divider or other utilitarian object.

There are other factors which may be relevant. In Sanji Kobata et al. v. United States, C.D. 4213 (1971), folding screens with hand-painted landscape scenes, valued from $75.00 to $8,000.00, were held to be duty free as paintings. In that case, a substantial amount of "use" testimony was presented which showed that these items were almost always used as "wall hangings" for their esthetic benefits, and not as screens. Two indications of use that were cited in Sanji Kobata are particularly relevant to the instant case. The court noted that "in 80 to 100%" of the times these screens were purchased, hanging devices were also purchased. The court also noted that these screens were smaller than many other Japanese screens. The court stated that "All the testimony left no doubt that the screens in question, as distinguished from the larger, taller and less fragile byobu screens, have never been and are not used as screens or room dividers." Id. at 344, C.D. 4213. It was also noted in HRL No. 553857, discussed above, that, subsequent to importation of the screen, hardware would be placed over the frame at the joints to prevent the panels from folding and to permit them to be hung on walls.

Additionally, the court in Sanji Kobata pointed out that the picture was always signed with the name of the artist and that none of the witnesses had ever seen two pictures to be identical because all of the paintings were painted by hand and were original paintings.

In the instant case, the screens were not painted by renowned artists as were the screens involved in the Headquarters Letters discussed above: if they were, there is no proof since they are not signed. The values of these screens, $1,000.00 to $6,000.00, do not approach the values of the screens discussed in the above Headquarters' Letters. There is no evidence that these screens have ever been displayed in famous art galleries as examples of fine art objects or that there are any plans to do so.

Moreover, there is no evidence that these screens are always, or even nearly always, used as "wall-hangings" solely for their esthetic benefits, as in Sanji Kobata. The large size of the screens would seem to prevent usage as wall hangings while their use as screens is enhanced. As mentioned above, the smaller screens in Sanji Kobata were contrasted with the less fragile, larger byobu screens (which is what we have in the instant case) that are more suited to use as screens. The instant merchandise is not normally sold with hardware for attachment to walls, as were the screens considered in

Sanji Kobata, and in HRL No. 553857. In Naumes Forwarding Service v. United States, 55 Cust. Ct. 132, C.D. 2562 (1965), the court held that the merchandise at issue in that case was properly classifiable as screens and stated:

In their condition as imported, they are adopted for use "free standing" on the floor but not for attaching to walls, for which use the folding feature is of no value. Weak testimony as to such use is not sufficient to establish that the articles are not screens, when other factors, such as their shape, construction, and resemblance to the well-known oriental folding screen proclaim that they are.

Considering the facts of this case, it seems that the instant merchandise is much more suitable for use as screens rather than use as "wall hangings".

In summary, these screens are manufactured items which serve definite utilitarian purposes and are more likely to be used for those purposes than any other. They are not of such unique artistic value that this use will be shunned. There is no evidence that they are objects of fine art themselves.

HOLDING:

The screens in question are properly classifiable under Subheading 4421.90.4000, which provides for "Other articles of wood: Wood blinds, shutters, screens and shades, all the foregoing with or without their hardware: Other", dutiable at a rate of 8% ad valorem. This holding is based on the information provided to our office concerning a group of screens. If upon closer examination of these screens you find that one or more are signed by a renowned artist, or differ from the other screens in any other manner that may affect their classification, it may benefit you to submit those screens for separate consideration.

Sincerely,

John Durant, Director

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