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HQ 956675




November 23, 1994

CLA-2 CO:R:C:F 956675 K

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.99

District Director
U.S. Customs Service
6601 N.W. 25th St.
Miami, Florida 33102-5280

RE: Application For Further Review of Protest No. 5201-94-100313; Wholesale Art & Frame Ltd., and Classification of Paintings Made With Use of Stencils

Dear District Director:

The following is our response to the referral by your office received on or about June 22, 1994, of the request for further review of the above-referenced protest.

FACTS:

The consumption entry covering the imported paintings from Hong Kong was liquidated on March 25, 1994, under the provision for other made up articles, other, in subheading 6307.90.99, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the rate of 7 percent ad valorem. A timely classification protest under 19 U.S.C. 1514 was received on May 12, 1994, with a request to reliquidate the entry under the provision for paintings, executed entirely by hand, in subheading 9701.10.0000, HTSUS, free of duty.

An invoice refers to the imported merchandise as original oil paintings. Three paintings, which measure 23 1/4 " x 19 1/4", were taken from the shipment as samples, and referred to the Customs Laboratory with the question whether the paintings were done by hand and whether any mechanical process was involved. The laboratory report stated that "the paintings showed evidence that a mechanical device (a stencil) was used in the production of the paintings" and that "the paintings were not executed entirely by hand."

The protestant does not dispute the report that stencils were used in the production of the shipment of paintings. The protestant asserts that the Customs Service erroneously concluded
that stenciling constitutes a mechanical reproduction which is contrary to the weight of the evidence of the art world. The protestant has submitted documentation to establish that some artists may use a stencil (and sometimes combined with the use of an air brush) to produce a painting, but it does not constitute a mechanical reproduction.

For purposes of this decision, we assume that the paintings, as imported, are not mounted and must be framed after importation.

ISSUE:

The issue is whether the use of stencils to produce paintings results in paintings that are not "executed entirely by hand" and, therefore, precluded from coverage under subheading 9701.10.0000, HTSUS.

LAW AND ANALYSIS:

Subheading 9701.10.0000, HTSUS, provides for the free entry of paintings, drawings and pastels, that are executed entirely by hand. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represents 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 General Rules of Interpretation of the HTSUS. The EN for paintings, subheading 9701.10.0000 states that

As these works must be executed entirely by hand, articles obtained wholly or partly by any other process are excluded, for example, paintings, whether or not on canvas, obtained by photomechanical processes; paintings executed by hand on an outline or on a drawing obtained by ordinary engraving or printing processes; so-called "authentic copies" of paintings, obtained by means of a number of masks or stencils, even if these copies are certified authentic by the artist. (Emphases are in the original.)

However, copies of paintings remain in this group irrespective of their artistic value, if they are executed entirely by hand.

The tariff schedule does not require that the paintings must be original paintings to qualify under subheading 9701.10,0000. However, the tariff schedule does require that the paintings must be "executed entirely by hand". The EN states that "articles obtained wholly or partly by any other process (that is, other then entirely by hand), are excluded" and specifically cites the use of stencils as an example of paintings that are not executed
entirely by hand. Notwithstanding the assertion that noted artists may partly use stencils in executing paintings, we conclude that paintings obtained wholly or partly with the use of stencils are precluded from coverage under subheading 9701.10.0000, HTSUS.

HOLDING:

Oil paintings obtained wholly or partly by means of stencils, that are not framed or mounted, are classifiable in subheading 6307.90.99, HTSUS, as other made up articles...other, with duty at the general rate of 7 percent ad valorem.

You are directed to deny the protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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