HQ 735550 - Country of origin marking requirements for terracotta pottery from Mexico; "work of art"; 134.43(d) - United States International Trade Commision Rulings

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HQ 735550

September 21, 1994

CLA-2 CO:R:C:S 735550 WAS

CATEGORY: CLASSIFICATION

Mr. Spencer H. MacCallum
The Heather Foundation
Box 4
Waterford, Virginia 22190

RE: Country of origin marking requirements for terracotta pottery from Mexico; "work of art"; 134.43(d)

Dear Mr. MacCallum:

This is in reference to your letter dated March 16, 1994, concerning the country of origin marking requirements for terracotta pottery imported from northern Mexico.

FACTS:

You state that on an intermittent basis since 1976, you and a number of traders have imported small quantities of low-fire, terracotta pottery from northern Mexico for resale in art galleries and museum gift shops in the U.S. You state that you have variously entered your merchandise into the U.S. at El Paso, TX, Columbus, NM, and Douglas, AZ. You claim that until approximately two years ago, a self-adhesive, printed "Made in Mexico" label affixed to each pot was considered as acceptable country of origin marking at any of these ports of entry.

You maintain that approximately two years ago, the District Director at Douglas, AZ, began requiring that every pot be marked "Made in Mexico" in indelible ink. Consequently, most traders began entering their merchandise at Columbus, NM. However, you state that, recently, a trader attempted to enter merchandise at Douglas and, on being told that he must mark the pots in indelible ink, returned to Mexico. Later, the same trader attempted to enter merchandise at Columbus. However, the District Director at Douglas had alerted the Columbus District Director and the trader was threatened with confiscation of all of his pottery unless he complied with the country of origin marking requirements.

It is your position that it is inappropriate to mark the pottery in indelible ink; much of it is valued and sold not as craft but as art -- some even as fine art. All of the pottery comes from one village, Mata Ortiz, Chihuahua. You claim that each piece is unique and is signed by the artist who made it. You also state that the pottery has been the subject of more than a dozen major museum exhibitions in the U.S.

You state that this pottery is made not by Mexican Indians, but by a mestizo population who have no remembered link to an Indian tribe. However, you claim that their work is creatively inspired, both in design and in method of manufacture, by the pottery tradition of a prehistoric Indian culture of northern Chihuahua, now extinct for 500 years, called "Casas Grandes." The Casas Grandes culture was closely related to the Pueblo Indian cultures of the American Southwest, and those unfamiliar with Southwest Indian pottery may confuse the two. Nevertheless, you claim that this is a unique pottery style of which the makers are proud; the potters of Mata Ortiz, Chihuahua, have never imitated South west Indian pottery.

In a telephone conversation on September 13, 1994, with a member of my staff, you stated that the pottery is made in Mexico from entirely Mexican-origin materials.

ISSUE:

Whether the pottery is excepted from the country of origin marking requirements under 19 CFR Part 134.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (December 8, 1993) and the interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994, to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements for these goods are set forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

Section 134.45(a)(2) of the interim regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French, or Spanish. Section 134.1(g) of the interim regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.

Section 134.32 of the interim regulations was amended to provide an exception for "Goods of a NAFTA country which are original works of art" from country of origin marking requirements.

In your letter, you suggest classification of the articles as "works of art" under Chapter 97, HTSUS, thereby excepting them from country of origin marking requirements. 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 dated 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, HTSUS. Id. The Explanatory Notes, which provide the official interpretation of the tariff at the international level, to Heading 9703, HTSUS, reflect this interpretation by excluding works of conventional craftsmanship of a commercial character. Therefore, the pottery which you intend to import into the U.S. is not considered a "work of art" and is not excepted from country of origin marking requirements under section 134.32 of the interim regulations.

Section 134.43(d), Customs Regulations (19 CFR 134.43(d)) sets forth the requisite methods of marking Native American-style arts and crafts. With certain exceptions, the pottery must be indelibly marked with the country of origin by means of cutting, die-sinking, engraving, stamping, or some other equally permanent method. See 19 CFR 134.43(d)(2). We are of the opinion that the pottery in this case falls within the meaning of Native American-style arts and crafts, because it incorporates traditional Native American design motifs.

Articles are exempt from the marking requirement under this section where it is technically or commercially infeasible to mark them in the manner specified, or in the case of a good of a NAFTA country, the article may be marked by means of a string tag or adhesive label securely affixed, or some other similar method. See 19 CFR 134.43(d)(3). Thus, if the pottery is a good of a NAFTA country, then the article may be marked by means of a string tag or adhesive label securely affixed, or some other similar method. A good of a NAFTA country is an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. See 19 CFR 134.1(g).

Part 102 of the interim regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the interim regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Section 102.11(a) of the interim regulations states that "[t]he country of origin of a good is the country in which:

(1) The good is wholly obtained or produced; (2) The good is produced exclusively from domestic materials;

As the pottery is produced in Mexico exclusively from Mexican-origin materials, Mexico is the country of origin of the good pursuant to the NAFTA Marking Rules. Therefore, since Mexico is a NAFTA country, pursuant to 19 CFR 134.43(d)(3), the Native American-style pottery may be marked with the country of origin by means of a string tag or adhesive label securely affixed, or some other similar method.

HOLDING:

Based on the information provided, the pottery made by a mestizo population in Mexico must be marked with the Mexican country of origin in accordance with the requirements set forth in 19 CFR 134.43(d)(3).

Sincerely,

John Durant, Director

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