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HQ 951170


May 26, 1992

CLA-2 CO:R:C:T 951170 jb

CATEGORY: CLASSIFICATION

Mr. Derek Thomas
Derek Thomas Enterprises Ltd.
Executive Centre
151 York Street
London, Ontario N6A 1A8
Canada

RE: Classification of garments as "works of art" v. men's jackets or vests.

Dear Mr. Thomas:

This is in reply to your letter dated January 23, 1992, regarding the classification of garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The samples submitted for which you are requesting a binding ruling classification are sixteen photographs, approximately 4 inches x 6 inches, four per sheet enclosed with plastic, depicting ordinary men's jackets or vests transformed by the artist into a very unique, one of a kind work of art.

The merchandise has been imported into Canada from a Florida based artist, who is employed on a temporary 12 month Canadian work visa. While in Canada she wishes to continue doing business with her clients in the U.S.A. and will be shipping goods out of Canada.

The items being shipped are men's jackets and vests which will be purchased in Canada. The artist then works on each item individually using a variety of paints, beads, jewels, lace and small wooden figures. The artist is able to transform an ordinary man's jacket or vest into a very unique, one of a kind work of art.

The issue presented for our consideration is whether the artist can transform ordinary men's jackets or vests, by application of various materials and techniques, into a very unique, one of a kind work of art classifiable in subheading 9701.10.0000, HTSUSA.

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied in the order of their appearance.

Chapter 97, HTSUSA, provides for works of art. It covers works executed entirely by hand in a variety of forms (for example, oil paintings, wax paintings, tempera paintings, acrylic paintings, water-colours, etc.), executed on any material.

The Explanatory Notes to heading 9701, Section XXI, A(d) exclude from that chapter:

Hand decorated manufactured (emphasis added) 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.

Similar language was found under the previous tariff, Tariff Schedules of the United States (TSUS), in defining "work of art". Though the HTSUSA has replaced TSUS, the latter is often used as a guideline because of the similarity in terms and definitions of certain provisions.

In HRL 025378, dated February 16, 1973, under TSUS, the dutiable status of 100 embroidered silk pictures from the People's Republic of China was discussed. That ruling provided in part that:
item 765.25, TSUS, of this subpart, provides for the free entry of original works of the free fine arts in any media including, but not limited to, applied paper and other materials, manufactured or otherwise, such as are used on collages. Hand-embroidered pictures may be considered as a media of the free fine arts under this provision. However, this provision is limited to creations that are original in design, conception, and execution. The creation must be of such fine quality and high artistic talent so as to be recognized as examples of the free fine art by recognized art authorities, as distinguished from works that are representative of the decorative or industrial arts... Embroidered pictures which do not qualify under the provision for original works of the free fine arts would probably be classified under the provision for silk furnishings, not ornamented, in item 367.45, TSUS.

In HRL 022202, dated August 31, 1972, it was determined that the dutiable status of two articles made by Mexican Indians also did not qualify for inclusion in the provision for works of art of 765.25 TSUS. This was because it appeared that one of the articles (tabla or cuadro) was better qualified as an article of wool; the chief value deriving from the wool composition. The second article, a clay sculpture of a bird covered in multi- colored wool yarn, was also classified as an article of wool due to the absence of proof that the birds were ceramic ware and produced by professional sculptors or were directly made from molds made from original models produced by professional sculptures.

Similarly, in HRL 088091, dated November 9, 1990, regarding the classification of bridal garments made of goat skin and glass beads, and HRL 087771 dated November 15, 1990, concerning hand embroidered articles, it was determined that neither of those articles qualified as "works of art" under chapter 97, HTSUSA. In both instances, despite the evident craftsmanship and beauty of the articles, the merchandise was classified according to its constituent materials.

Despite the ability of the artist to transform ordinary men's jackets or vests into art clothing, their classification does not appear to be within the Works of Art provision. The determinative factors which lead us to this conclusion can be summed up as follows:

(1) the wearable art is still worn as clothing (2) the merchandise is excluded by EN of heading 9701, Section XXI, A(d), which excludes hand decorated manufactured articles
(3) the garments, though of fine craftsmanship and aesthetic appeal, are not of the fine quality recognized as examples of free fine art by recognized art authorities.

As you did not provide us with any samples, we cannot determine, at this time, the proper headings or subheadings for the jackets or vests. Should you still want to pursue classification, you should be prepared to forward samples of the garments to our Customs office in New York. Upon receipt of those articles, we will be prepared to issue a binding ruling classification.

Sincerely,

John Durant, Director

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