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HQ 965501

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July 11, 2002

CLA-2 RR:CR:TE 965501 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.:

Mr. Alfred C. Welcome
6015 Elinore Way
Dunsmuir, CA 96025

RE: Classification of textile clothing items from China

Dear Mr. Welcome:

This is in reply to your letter submitted to this office on your behalf by Congressman Wally Herger. In your correspondence, you inquire about your concerns regarding the classification of textile clothing items from China and the applicable quota and visa requirements.

FACTS:

You have presented various folkloric clothing items from China. These items are wearing apparel for both men and women which you claim are produced in the traditional “indigenous” manner from remote regions of China. All of the photographs presented to Customs portray colorful clothing items with various woven decorative features. The items are in varying lengths and appear to range from long coats and shirts to robes to pants and skirts. We are unable to determine whether the items are woven or knit in construction but you have provided that some are partly manufactured from silk.

ISSUE:

1) Are the subject textile and apparel articles exempt from quota and visa requirements?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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 may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

I. TEXTILES AND APPAREL CLASSIFICATION

Upon determination of the appropriate classification under the HTSUSA, Customs is able to determine the appropriate quota and visa requirements. Various textile items classified under the HTSUSA are subject to visa and quota restrictions and although Customs is unable to provide you with the complete ten digit classification for the subject merchandise in the absence of samples, we are reasonably certain that all of them would be subject to quota and visa requirements. U.S. Customs does not have the authority to waive the visa and quota requirements which are applicable to textile and apparel goods. These quota and visa requirements can only be waived by virtue of a bilateral agreement with the country in question.

The United States has in the past signed agreements with other countries which allow for a limited importation of items similar to the subject merchandise. These agreements allow for designated items which are given “folklore” or “handicraft” status to be entered into the Customs territory of the United States quota free. Currently there is no such agreement with China concerning handicraft or folklore articles which would be exempt from quota and visa requirements. We are referring your letter and a copy of this response to the government agency, the Committee for the Implementation of Textile Agreements, which deals with such agreements. You may direct any further questions you may have regarding this matter to:

Chairman, Committee for the Implementation of Textile Agreements U.S. Department of Commerce
14th & Constitution Ave., N.W.
Room H-3100
Washington, D.C. 20230

His office may also be contacted at (202) 482-3737.

II. WORKS OF ART

Another alternative that you have requested that Customs considered for the importation of your ethnic Chinese merchandise is to allow you to import the subject merchandise quota free by pursuing a “work of art” designation and classification as such in Chapter 97, HTSUSA. Unfortunately, the subject textile articles would not qualify as a “work of art” under the Harmonized Tariff System despite their incredible beauty and artisan quality. We will briefly outline the requirements for a “work of art” for your informational purposes.

In order for an article to be classified in Chapter 97, HTSUSA, 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.

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 (“HQ”) 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.

Additionally, Customs has determined that articles of utility are excluded from the free entry provisions for original paintings and sculptures in the tariff schedule. The Customs Court has held that it is not enough for a plaintiff to show that the articles in controversy are original sculptures made by a professional sculptor; it must also be shown that they are not articles of utility. Joseph A. Paredes & Co., a/c A. Guintoli v.United States, 40 Cust. Ct. 471, Abstract 61618 (1958). In T.D. Downing Co. v. United States, the Customs Court had the opportunity to distinguish works of art from articles of utility where elements of both may be present. In Downing, the Court stated that:

Where the utilitarian purpose is clearly subordinate or nonexistent, sculptured articles, although in the form of vases or urns, have been held classifiable as works of art.

See United States v. Baumgarten & Co., 9 Ct. Cust. Appls. 321, T.D. 32052 (1911); Samuel Shapiro & Co., Inc., 31 Cust. Ct. 181, C.D. 1566 (1953).

In Baumgarten, the court stated:

The form of a vase indeed has been used from ancient times as a medium for the finest artistic productions, and in many cases the utilitarian character of the article is wholly lost in its artistic character.

Baumgarten at 323-324.

Thus, the nature of the utilitarian aspect of articles is also a consideration in the determination of the applicability of Chapter 97, HTSUSA. It is our determination that the subject textile and apparel articles imported from China are not eligible for designation as a “work of art” under the HTSUSA and therefore, are not exempt from quota free treatment under this provision of the HTSUSA.

HOLDING:

The subject merchandise is not exempt from quota and visa requirements. The merchandise is to be classified in the appropriate textile provisions of the HTSUSA.

Any applicable designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles Harmon, Acting Director

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