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HQ 950127


August 31, 1992
CLA-2 CO:R:C:F 950127 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4823.90.2000

Mr. Robert L. Meuser
Thompson & Company
1001 G Street, N.W.
7th Floor East
Washington, D.C. 20001

RE: Lacquer Boxes from Russia

Dear Mr. Meuser:

This letter is in response to your letter of August 13, 1991, requesting the tariff classification of hand-painted lacquer boxes imported from the village of Palekh, Russia. Descriptive literature illustrated with photographs were submitted with your request. Actual samples of various boxes were examined by Customs personnel during a meeting at Customs Headquarters at which time you also presented a videotape concerning the history, making and painting of the boxes.

FACTS:

This merchandise is commonly known as Russian lacquer boxes. These boxes have hand-painted scenes that are often displayed on both the lid and sides of the box, although they are sometimes displayed only on one or the other. The boxes usually depict scenes from Russian life, literature, history, traditions, folklore, and, less commonly since the Russian revolution of 1917, religious history. You state that Palekh is known for its depictions of Russian mythology and poetry. You also state that all boxes from Palekh are decorated with original paintings only. The boxes are constructed of papier-mache. Many non-Palekh boxes sell at retail for as low as $100.00 (per box) whereas these Palekh boxes normally start at $400.00 each and the price for all boxes can go quite high. You cite $25,000.00 as a maximum price for some original lacquer miniatures. Most of the boxes examined at Customs Headquarters were marked with price tags ranging from the $400.00 area to $1,000. Several statements from experts attesting to the artistic merit of the boxes were submitted with your classification request.

The process of making the boxes prior to painting involves both simple machinery and work by hand. Although the process of creating the box frame takes approximately 60 days, a substantial number are produced because of the ongoing process in which many boxes are started on a regular basis. In addition to the boxes, the Palekh artists execute their painting on jewelry, plates, and plaques.

ISSUE:

Whether the subject merchandise is classifiable as paintings under the duty-free provision in Chapter 97, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or whether the articles are classifiable as other articles of papier-mache which are subject to duty in Chapter 48, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 4823, HTSUSA, provides, inter alia, for other articles of paper pulp, paper and paperboard; subheading 4823.90.2000, HTSUSA, provides more specifically for other articles of papier-mache. The subject boxes, constructed of papier-mache, are properly classifiable therein.

You have requested that these boxes be classified in heading 9701, HTSUSA, the provision for paintings and other items and more specifically in subheading 9701.10.00, HTSUSA, the provision for "Paintings, drawings and pastels." Although Customs notes the artistic merit of the paintings displayed on many of these boxes, it is our determination that classification in subheading 9701 would be incorrect. In prior rulings, Customs has ruled that items similar to the subject boxes are excluded from Chapter 97 (the "Works of Art" chapter) by Explanatory Note 97.01(A)(d)
which excludes "[H]and decorated manufactured articles such as wall coverings...holiday souvenirs, boxes (emphasis added) and caskets" and other items. The EN adds that "these are classified in their own appropriate headings." Several prior Customs rulings have denied 9701 classification to merchandise based, in part, on the conclusion that the items were "hand-decorated manufactured articles." These rulings include Headquarters Ruling Letter (HRL) 087577, dated November 21, 1990, which concerned Russian lacquer boxes very similar to those at issue here--and also constructed of papier-mache, and HRL 951170, dated May 26, 1992, which concerned hand-painted and decorated clothing.

Other Customs Rulings have denied classification as paintings to items on the basis that they were "akin to" or "produced in a manner similar to" manufactured articles and therefore were not transformed into paintings by the application of decoration and painting to the exterior. These rulings include HRL 089094, dated August 2, 1991, (hand-painted drum), HRL 089401, dated September 4, 1991 (hand-painted suncatchers on glass) and HRL 088792, dated November 22, 1991, (hand-painted decorative fans).

These boxes are "hand decorated manufactured articles"; at the very least they are "akin to" and "produced in a manner similar to" manufactured articles and are thus not transformed into items classifiable as paintings by the application of painting on the exterior. When Congress included "paintings" in the duty free provisions of Chapter 97, it was not contemplated that any article displaying a painting should be classified therein even though a literal application of the EN's would seem to qualify some such articles as paintings. "It is not at all unusual to hold that a tariff term does not include everything literally within the term...." United States v. Andrew Fisher Cycle Co., 57 CCPA 102, C.A.D. 986, 426 F.2d 1308, 1311-1312 (1970).

While it is true that some canvas made for use in oil painting is "manufactured" to some extent, there is no other utilitarian purpose for that item. The Russian boxes, however, fulfill the utilitarian purpose common to all boxes. Customs and the courts have adopted a very strict position against allowing the classification of utilitarian objects in Chapter 97.

The exclusion of utilitarian articles from classification in Chapter 97 has existed for a substantial time, including under the former Tariff Schedules of the United States (TSUS). In HRL 053111, dated January 17, 1978, Customs considered framed glass paintings intended to be used as table tops. Customs stated that
regardless of whether these items are hand-painted or whether they possess artistic merit, any of the paintings "which belong to a class or kind of article chiefly used as table tops or other parts of furniture would not be eligible for free entry since articles of utility are also precluded from entry as works of art." In HRL 063411, an information paper dated November 7, 1979, Customs stated that "Beautiful, rare, unique and creative cigarette boxes, card boxes, clocks, picture frames, articles of jewelry and similar articles of utility are generally precluded" from any of the work of art provisions. Customs continued by stating that "[N]ormally, 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."

Customs has continued to apply a strict test regarding this issue under the HTSUSA. In several of the rulings previously cited and described, i.e., HRLs 087577, 951170, and 089094, the utilitarian aspect of the articles was specifically mentioned as a major factor for the denial of classification in subheading 9701.

In Sanji Kobata et al. v. United States, 66 Cust. Ct. 341, C.D. 4213 (1971) (Re, J.), which you cite extensively in your correspondence, the court held that various hand-painted Japanese folding screens were classifiable as paintings rather than as wood screens. The court based its holding on the artistic value of these items and the fact that these two dimensional screens were imported for use as wall-hangings and were in fact hung and displayed on walls in a manner identical to that of paintings. Customs cited Sanji Kobata and arrived at a similar conclusion concerning other Japanese screens in HRL 087170, dated September 14, 1990. Sanji Kobata and HRL 087170 are not outcome determinative with respect to the Russian boxes. Artistic merit was only one factor in the classification of the screens as paintings. The other, very important, factor was the similarity of the screens to the type of items that would normally be contemplated as included in the term "paintings."

It is our determination that, in addition to being displayed in the home, these Russian lacquer boxes will often be used for their utilitarian purpose and are quite handy for storing such articles as jewelry, trinkets, and other small items. Whether used in the bedroom, bath, or rooms for entertaining company, the paintings will increase the aesthetic appeal while the storing function is performed. While it is true that the prices of some of these boxes may be very high and that several may be displayed in museums, etc., the prices for a great many of the boxes are not so extraordinary as to render their use as boxes unlikely.

HOLDING:

The subject Russian lacquer boxes are classified in subheading 4823.90.2000, HTSUSA, the provision for other articles of papier-mache. The column one rate of duty is 3.1% ad valorem.

Sincerely,

John Durant, Director

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