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HQ 956544




October 19, 1994

CLA-2 CO:R:C:T 956544 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4420.90.4500

Terry R. Warth, Ph.D.
The Textile Art Collection
6458 Tolhurst Court
Anchorage, AK 99504

RE: Classification of boxes covered with hand made Washi art paper; works of art; decorative articles; Japanese Washi paper; wood box; HRL 089978

Dear Mr. Warth:

This responds to your letter of May 25, 1994, wherein you requested a binding classification ruling concerning boxes covered with hand made Japanese Washi art paper. You submitted photographs of the kind of boxes at issue. We have reviewed the matter, and our decision follows.

FACTS:

You described the merchandise at issue as follows:

1.) Hand made, six-sided, lined lidded boxes covered with hand made Washi art paper, measuring 5 inches across and valued at $16 - $20 (wholesale cost, Japan);

2.) hand made, eight-sided, lined lidded boxes covered with old Washi art paper that has been varnished, measuring 4 inches across and valued at $27 - $35 (wholesale cost, Japan);

3.) hand made, lined lidded gift boxes covered with hand made Washi art paper, measuring 2 1/2 inches square and valued at $12 - $20 (wholesale cost, Japan); and

4.) lightweight, lined wooden tea boxes covered with hand made Washi art paper, measuring 5 inches x 7 inches and valued at $22 - $45 (wholesale, Japan), depending on the age and rarity of the Washi paper.

Except for item #4 above, the material comprising the frames of the boxes is not described. The paper covering is described as traditional Japanese paper, about which you stated the following:

The finely made Washi paper from Japan is considered to be a form of Japanese 'folk art'. . . . As this paper making process is still being practiced today as it originated hundreds of years ago on an individual basis, it is considered an art form not only in Japan, but also around the world. The items made by hand by individual artists . . . assume numerous shapes and forms from boxes to individually framed pieces to origami angels hanging on the Christmas tree.

No further description of the paper, how it is made, or how the decoration is applied was provided.

ISSUE:

Are the boxes at issue classifiable as works of art in Chapter 97, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is accomplished 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 goods cannot be classified solely on the basis of GRI 1, and if headings and legal notes do not otherwise require, the remaining GRI's will then be applied in numerical order. Further, the Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System (HCDCS), which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI's. Accordingly, the GRI's and EN's are utilized as the basis for the classification determination discussed below. (See T.D. 89-80, 23 Cust. Bull. 379 (1989), 54 Fed. Reg. 35,127 (August 23, 1989).) (See also Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153 (CIT September 4, 1992), 26 Cust. Bull. No. 40, 35, 37 n. 3 (September 30, 1992), citing T.D. 89-80 and acknowledging the authority of the EN's.)

Works of Art

Chapter 97, HTSUSA, covers works of art, collectors' pieces, and antiques. The headings of the chapter cover the following articles: paintings, drawings, and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand- painted or hand-decorated manufactured articles; collages and similar decorative plaques; all the foregoing framed or not framed (heading 9701); original engravings, prints, and lithographs, framed or not framed (heading 9702); original sculptures and statuary, in any material (heading 9703); postage or revenue stamps, stamp-postmarks, first-day covers, postal stationery (stamped paper), and the like, used, or if unused not of current or new issue in the country to which they are destined (heading 9704); collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic, or numismatic interest (heading 9705); antiques of an age exceeding one hundred years (heading 9706).

The only heading of the chapter remotely deserving consideration is heading 9701, and this only if the decoration is applied to the paper in one of the described ways. The EN's for heading 9701 provide the following regarding paintings, drawings and pastels executed entirely by hand (HCDCS, Vol. 3, p. 1616):

This group covers paintings, drawings and pastels (whether ancient or modern), executed entirely by hand. These works may take the form of oil paintings, wax paintings, tempera paintings, acrylic paintings, water- colours, gouache paintings, pastels, miniatures, illuminated manuscripts, pencil drawings (including Conte drawings), charcoal or pen drawings, etc., executed on any material. [Bolding in original; underlining added.]

It is clear that to qualify under this heading, an article must be hand painted or drawn. From an examination of the photographs, it does not appear that either method is used to produce the Washi art paper, although without a detailed description of how the paper is made, we do not so conclude.

Based on the information we have, we conclude that the boxes at issue cannot be classified in heading 9701, HTSUSA. Moreover, we believe that classification generally as a work of art is not appropriate for the reason that the boxes do not appear to be products of what is referred to as the "free fine arts." In Headquarters Ruling Letter (HRL) 089094, issued August 2, 1991, the issue of what constitutes a work of art was discussed. (See also HRL 087577, dated November 21, 1990.) Therein, the following was stated:

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 [United States] 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. Olivetti & 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.

We believe that the Washi art paper covered boxes at issue are of the kind contemplated in the above quoted passage. These are works of the decorative arts rather than the free fine arts. They are produced by artisans and craftsmen of the kind named above.

In addition, the ruling pointed out that articles of utility are excluded from classification in the chapter as paintings or sculptures. In order to be accepted as a genuine work of art, it must be shown that the alleged work of art is not an article of utility. See Joseph A. Paredes & Co. v. United States, 40 Cust. Ct. 471, Abstract 61618 (1958). (However, in some instances, if the utilitarian aspect of a work of art is clearly subordinate or nonexistent, it can be considered a work of art. See T.D. Downing Co. v. United States, 66 Cust. Ct. 1036, C.D. 4168 (1971), regarding sculptured vases and urns.) The boxes at issue clearly have a utilitarian aspect. We believe that this fact further argues against their being considered works of art for tariff purposes. (See also HRL 087797, December 20, 1990, citing HRL 063320, September 27, 1979.)

Finally, the EN's indicate that articles of the kind at issue are not classifiable in the chapter covering works of art. The EN for heading 9701, HTSUSA, provides that the following articles are excluded from classification in the heading: "(d) Hand-decorated manufactured 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." (See HCDCS, Vol. 3, p.1616.) For heading 9703, HTSUSA, the following articles are excluded: "(b) Works of conventional craftsmanship of a commercial character (ornaments, religious effigies, articles of personal adornment, etc.)." (See HCDCS, Vol. 3, p. 1617.)

For the foregoing reasons, we conclude that the boxes covered with Washi art paper are not classifiable as works of art in Chapter 97, HTSUSA. Therefore, the boxes will be classified as boxes in other appropriate headings.

Classification

Regarding the tea boxes, these are composite goods, not specifically provided for, consisting of wood frames with paper covering. As a composite good, they are classifiable under GRI 3(b) or, if that is inapplicable, GRI 3(c). These rules are as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Boxes generally are functional articles. While the tea boxes at issue are designed to be beautiful and decorative, they nonetheless are also functional. The wooden frame of the box provides shape and strength, and plays a prominent role in its function to store and preserve tea (although the box can be put to other uses). Thus, it is the wood component of the tea box that imparts essential character. Therefore, classification is appropriate in heading 4420, HTSUSA. This is in accord with HRL 089978, issued September 11, 1991, which classified a wood (particle board) tea box covered with Washi art paper in subheading 4420.90, HTSUSA.

Because the material from which the frames of the boxes described in items #1, #2, and #3 is unknown, we cannot make a classification determination regarding them. However, if they are constructed of paper or paperboard, they would be classifiable in subheading 4823.90.8500, HTSUSA, which provides for other articles of paper or paperboard, other, other, other, other, other. The duty rate is 5.3% ad valorem. If the frames are made of another material, a GRI 3 analysis would be required to determine classification.

HOLDING:

The wooden tea boxes are classifiable in subheading 4420.90, HTSUSA, which provides for jewelry boxes, . . . cigar and cigarette boxes, . . . and similar boxes . . . of wood: other. If the tea boxes are lined with textile fabrics, they are classifiable in subheading 4420.90.6500, HTSUSA. If they are not lined with textile fabrics, classification is in subheading 4420.90.4500, HTSUSA. The General Column 1 rate of duty for the latter provision is 6.7% ad valorem. For the former provision, it is 2.2 cents/kg, plus 2.9% ad valorem.

Sincerely,

John Durant, Director

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