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HQ 951896


October 6, 1992

CLA-2 CO:R:C:F 951896 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7114.11.70

Mr. Michael D. Kaydouh
Michael D. Kaydouh and Associates
1311 Vincent Place
Mclean, Virginia 22101-3615

RE: Russian Kovsh

Dear Mr. Kaydouh:

This is in response to your May 8, 1992, inquiry requesting the tariff classification of a Russian kovsh. Descriptive literature and a picture of the item were submitted with your inquiry.

FACTS:

The subject article is a traditional silver Russian kovsh (a device used in the sixteenth century to dip beer) with the engraving of a man riding a horse protruding from the bowl-like structure of the kovsh. The item has a handle decorated in the Old Russian style. The description states that the kovsh was made by the House of Faberge with the Faberge mark below the Imperial warrant. The item is engraved to show that it was made approximately in the year 1909. An inventory number (24682) is provided for the kovsh.

You state that the kovsh has lost its function as a beer dipper in the last few centuries and has now become an object which one would present to another "upon entering someone's home or at ceremonial events signifying Russian hospitality."

ISSUE:

Whether the kovsh should be classified as a work of art (sculpture) or as an article of silversmith's wares?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (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.

First we must determine whether the kovsh is classifiable as a work of art in Chapter 97, HTSUSA. If classified therein, the proper heading would be 9703.00.00, HTSUSA, the provision for "Original sculptures and statuary, in any material."

In order for an article to be classified as sculpture or statuary in Chapter 97, 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. That court's interpretation of the provision concerning "original sculptures" under the TSUS is equally applicable to the successor provision in Chapter 97.

Thus, a Chapter 97 work of art 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 craftsmen. The Customs Court has determined that although works by such professions are 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); Headquarters Ruling Letter (HRL) 063320, dated September 27, 1979.

The Explanatory Notes 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.

One important factor that Court decisions and prior Customs rulings have utilized in making the "work of art" determination is the professional status of the artist. Normally, the artist must be either a graduate of a course in fine art or recognized in art circles as a professional by the acceptance of his or her works in public exhibitions limited to the free fine arts. This information can be provided in the form of a resume or biography. In addition, each work must be of such fine quality and high artistic merit that it is recognized as an example of the free fine arts by certain art authorities. The artwork is generally signed by the artist.

It is our determination that the Russian kovsh is properly classified as an item of the "industrial or decorative" arts and not as a Chapter 97 work of art. It is the work of a silversmith. We note that the courts have specifically mentioned the work of "goldsmiths" (U.S. v. Olivotti, cited herein) as one of the several types of works not included as a work of the free fine arts, "beautiful and artistic though they may be."

HOLDING:

The Russian kovsh is classified in subheading 7114.11.70, HTSUSA, the provision for articles of goldsmiths' or silversmiths' wares and parts thereof, of precious metal or of metal clad with precious metal, of silver, whether or not plated or clad with precious metal, other. The general column one rate of duty is 6 percent ad valorem.

Sincerely,

John Durant, Director

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