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HQ 086100


April 3, 1990

CLA-2 CO:R:C:G 086100 JBW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.90

Mr. Jeff E. Sosower
Southern Cross Pottery
11 Caba Close
Boambee, N.S.W. 2450
AUSTRALIA

RE: Handcrafted Australian Vases and Platters

Dear Mr. Sosower:

This letter is in response to your inquiry of November 22, 1989, regarding the classification of and rate of duty for handcrafted vases and platters under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

Southern Cross Pottery is manufacturing a limited edition series of decorative handmade vases and platters. Each article is stated to be unique and is designed to be aesthetic and ornamental, not functional. The pottery is made on a potter's wheel, hand designed, and individually signed and dated. The pottery will be imported in three forms: (1) "Oz Bush Pot," a decorative vase approximately twelve inches high; (2) "Oz Bush Platter," a decorative platter approximately twelve inches in diameter; and (3), "Oz Bush Platter," a decorative platter approximately eighteen inches in diameter.

ISSUE:

Whether the articles under consideration are classifiable as works of art under the HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's.

In your letter, you suggest classification of the articles as "works of art" under Chapter 97, HTSUSA. The Customs Service acknowledges the aesthetic and special character of the articles to be imported. However, interpreting the scope of paintings and sculptures as works of art in a previous statute, the United States Court of Customs Appeals excluded, among other crafts, the works of potters. United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916); see Headquarters Ruling Letter (HRL) 083107 (April 24, 1989). Although the works are considered both artistic and beautiful, they are not recognized as works of the free fine arts under Chapter 97, HTSUSA. Id. The Explanatory Notes, which provide the official interpretation of the tariff at the international level, to Heading 9703, HTSUSA, reflect this interpretation by excluding works of conventional craftsmanship of a commercial character.

To be classified as sculpture under Chapter 97, the pottery must exhibit rare and special genius attributable to the works of a single artist. 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). We have received no information, short of your statements, relating to the rare and special nature of the pottery or the status of the makers of the pottery. Until such information is received, we cannot determine that your pottery is a work of art.

Heading 6913, HTSUSA, provides for statuettes and other ornamental ceramic articles. The Explanatory Notes include within Heading 6913, HTSUSA, articles that have no utility value but are wholly ornamental. Specifically, the Explanatory Notes include purely ornamental table-bowls, vases, pots, and jardinires.

From your description, the imported vases and platters meet the description of articles classified in Heading 6913, HTSUSA. Classification and rate of duty will ultimately depend on the composition of the article, which was not specifically stated in your letter, as follows: If of ceramic tiles, then classification is appropriate under subheading 6913.90.10, HTSUSA, with a rate of duty of 4.2 percent ad valorem. If of earthenware, whether or not decorated, having a reddish-colored body and a lustrous glaze, and mottled, streaked or solidly colored brown to black with metallic oxide or salt, then classification is appropriate under subheading 6913.90.30, HTSUSA, with a rate of duty of 2.5 percent ad valorem. Otherwise, the articles are classified under subheading 6913.90.50, HTSUSA, with a rate of duty of 7 percent ad valorem.

HOLDING:

The articles under consideration are classified under Heading 6913, HTSUSA, as statuettes and other ornamental ceramic articles. Classification within this heading depends on the precise composition of the articles.

Sincerely,

John Durant, Director
Commercial Rulings Division

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