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HQ 087797


December 20, 1990

CLA-2 CO:R:C:G 087797 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.9040

Ms. Joan Andrews Taube
4009 Ellicott Street
Alexandria, VA 22304

RE: Native Canadian Carved Masks; Work of Art; Original Sculptures and Statuary; Heading 9703

Dear Ms. Taube:

This letter is in response to your inquiry, dated August 18, 1990, addressed to the District Director in our Buffalo, N.Y. office, concerning the tariff classification of a Native Canadian carved mask under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Neither a sample nor photograph depicting the article at issue was submitted along with your request for a ruling.

FACTS:

The sample merchandise is described as a Native Canadian carved mask. It is made of red cedar wood which has been hand- carved and hand-painted.

The merchandise was entered into the United States on August 1, 1990. At that time, duty in the amount of $35.96 was paid on what you describe as a Native Canadian carved mask. On August 18, 1990, you sent a letter to the District Supervisor of the Buffalo Region protesting the classification and duty charge on the merchandise which you imported into the United States. The merchandise was classified under subheading 4421.90.90 HTSUSA, as "other articles of wood" and subject to a duty rate of 5.1 percent ad valorem. In another letter dated August 19, 1990, you wrote to this office requesting that we reconsider the classification of the Native Canadian carved mask. You maintain that Customs erred in its classification of this article and that the article is more properly classified as a work of art in subheading 9703.00.0000, HTSUSA, and that you should be entitled to a refund of the duties that you paid.

ISSUE:

Whether the subject merchandise is classifiable as "works of art" under the duty-free provision in Chapter 97, HTSUSA, or whether the article is classifiable as an other article of wood in Chapter 44, HTSUSA and subject to a duty rate of 5.1 percent ad valorem.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner 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, taken in order.

You have requested that the sample merchandise be classified under Heading 9703, HTSUSA, as a "work of art" and entitled to duty free status. In support of your claim you state the following:

The mask is an original work of art by a well known British Columbian carver. It is signed and is a one- of-a-kind piece. Documentation to this fact was provided to the Customs Service by the Vancouver Museum.

In order for an article to be classified in Chapter 97, HTSUSA, 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.

The Customs Regulations set forth specific requirements which apply to the entry of works of art classifiable in Heading 9703, HTSUSA. First, the invoices covering these articles must show whether they are originals, replicas, reproductions, or copies, and also the name of the artist who produced them, unless upon examination the appraiser is satisfied that such statement is not necessary to properly determine the nature of the article.

19 CFR 10.48(a). In addition, a declaration by the artist who produced the article must be presented to indicate whether it is original, or, in the case of sculpture, the original work or model or one of the first ten castings, replicas, or reproductions made from the original work or model must be shown. 19 CFR 10.48(b)(1). With regard to articles claimed to be duty free under Heading 9703, HTSUSA, the District Director may require proof of the character of the article, including, when necessary, certificates from curators or other recognized authorities on art, that the imported article represents some school, kind, or medium of the free fine arts. 19 CFR 10.48(e).

Under the TSUS, the Customs Service interpreted the provision covering original sculptures and statuary to exclude articles of utility for industrial use. Headquarters Ruling Letter (HRL) 063320, dated September 27, 1979, states:

Beautiful, rare, unique and creative cigarette boxes, card boxes, clocks, picture frames, articles of jewelry and similar articles of utility are generally precluded from coverage under the provisions in Subpart A, Part 11, Schedule 7, TSUS. Normally, the determinative factor is not whether the importer intends to use the article in a utilitarian manner but whether the article can be used for a useful purpose.

The above provision is equally applicable to the successor provision in the HTSUSA.

In order to be classified as a "work of art" in Chapter 97, HTSUSA, 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. (Emphasis added). However, the Customs Court has determined that although works by such professions may be 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); HRL 063320, dated September 27, 1979. The Explanatory Notes, which provide the official interpretation of the tariff at the international level, 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.

Inasmuch as the sample wood masks appear to be of the decorative or industrial kind, rather than works of the free fine arts by a professional, they are not within the purview of heading 9703, HTSUSA, and are not entitled to duty free entry as original sculptures and statuary.

In addition, for an article to be classified as a work of art under subheading 9703.00.0000, HTSUSA, it must be created by a professional artist. Customs has determined that in order to show that a person has achieved professional artist status, the artist must be either: (1) a graduate of a course in fine art, or in sculpture, from a recognized school of fine art, not industrial art; or (2) recognized in aret circles as a professional by the acceptance of his or her works in public exhibitions limited to the free fine arts. CIE 160/56, dated February 6, 1956. Customs has stated that this information can be provided in the form of a resume or biography. In addition, to the professional artist status, each work must be of such fine quality and high artistic merit so as to be recognized as examples of the free fine arts by certain art authorities. CIE 160/56, dated February 6, 1956; Headquarters Ruling Letter (HRL) 063320, dated September 27, 1979; HRL 063591, dated March 3, 1990.

In the instant case, we have received no information, short of your statements and a brief biography of the artist, relating to the rare and special nature of the wood mask or the status of the maker of the mask. The artist involved here has not shown that he has achieved professional artist status, i.e., that he has graduated from a recognized school of fine arts or that he is recognized in art circles as a professional by the acceptance of his works in public exhibitions limited to the free fine arts. The only art establishment that the artist in this case has exhibited in is the British Columbia Provincial Museum, with which we are unfamiliar. Thus, failing to satisfy the criteria for professional artist status, we have concluded that the mask does not meet the requirements for a work of art in subheading 9703.00.0000, HTSUSA.

In sum, based on the information that we have received from you, it is the determination of this office that the Native Canadian carved mask at issue does not qualify for duty free treatment under subheading 9703.00.0000, HTSUSA. The mask does not qualify as a work of the "free fine arts," but rather is a work of art that is more representative of the decorative or industrial arts. In addition, the creator of the mask does not qualify as a recognized professional sculptor for the purposes of this tariff provision. Therefore, the mask is classifiable under the provision for "Other articles of wood."

This decision pertains only to the application of the tariff provision and relevant regulations to the facts available to us about this imported article. This ruling does not presume to judge the artistic merit of the article nor the talent of the creator of the article. Further, this ruling expresses no opinion on the merit of the art collection of the British Columbia Provincial Museum.

HOLDING:

Based on the foregoing analysis, the carved wooden mask is classifiable under subheading 4421.90.9040, HTSUSA, which provides for Other articles of wood: Other: Other: Other. Articles classified under this subheading are subject to a duty rate of 5.1 percent ad valorem. We regret that we are unable to refund any of the duties that you paid upon entering the United States with the subject merchandise.

Inasmuch as we are treating your letter to the District Director, Buffalo as a legal protest of the classification under 19 U.S.C. 1514, your protest is hereby denied.

Sincerely,

John Durant, Director

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