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HQ 086227

April 18, 1990

CLA-2 CO:R:C:G 086227 WAW


TARIFF NO.: Heading 7113

Marvin J. Goldstein, Esq.
Stroock & Stroock & Lavan
Seven Hanover Square
New York, N.Y. 10004-2594

RE: Reconsideration of Headquarters Ruling Letter (HRL) 083351; Brooches of gold and silver

Dear Mr. Goldstein:

This ruling is in response to your letter, dated December 20, 1989, on behalf of your client, Loveed Corporation (a/k/a The Helen Drutt Gallery), requesting a reconsideration of the classification of certain ornaments as jewelry, rather than as artwork. Included with your original ruling request, you submitted a biography of the artist, Manfred Bischoff, as well as copies of pages of an an art gallery catalogue which contains the artist's work.


The subject merchandise consists of three brooches made of gold and silver with two of the brooches also consisting of pearls and coral designed by Manfred Bischoff. The brooches are displayed in a frame on the wall of the art gallery. They are designed with pins on the back and may be worn as pieces of jewelry.

In HRL 083351, dated November 9, 1989, Customs held that the subject merchandise is excluded from Chapter 97, HTSUSA, pursuant to the Explanatory Notes to that chapter and that the brooches are more properly classifiable as jewelry in Chapter 71, HTSUSA.

In this request, you ask us to reconsider HRL 083351 based on the reason that Customs misunderstood the facts at issue. You contend that the sample articles are not "manufactured articles" as stated in the ruling letter. Further, you state that these articles are not "works of conventional craftsmanship of a commercial character" since each article is individually designed and crafted, and is intended to be displayed as a work of art. Finally, you maintain that these articles are not "jewelry" since they are displayed and sold in art galleries, rather than in jewelry stores. Accordingly, you argue that the brooches are classified under the provision for paintings, drawings and pastels, executed entirely by hand, other than drawings of Heading 4906 and other than hand-painted or hand- decorated manufactured articles: other, in subheading 9701.90.0000, HTSUSA, or under the provision for original sculptures and statuary, in any material, in subheading 9703.00.0000, HTSUSA.


Whether the subject merchandise is classifiable as works of art under the duty-free provision in Chapter 97, HTSUSA, or whether the articles are classified as jewelry which is subject to duty in Chapter 71, HTSUSA.


The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

In your letter, you suggest classification of the articles as "works of art" under Chapter 97, HTSUSA. In order for an article to be classified in Chapter 97, HTSUSA, it must meet the standard for "work 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 Heading 9703, HTSUSA. We have received no information, short of your statements and a biography of the artist, relating to the rare and special nature of the brooches or the status of the makers of the brooches. Until such information is received, we cannot determine that your jewelry is a work of art.

Moreover, in order to be classified as a "work of art" in Chapter 97, HTSUSA, an article must be a work of the free fine arts, rather than the decorative or industrial arts. The phrase "industrial or decorative arts" includes work performed by potters, glassmakers, goldsmiths, weavers, woodworkers, jewelers, and other artisans and craftsman. However, although works by such professions are considered both artistic and beautiful, the phrase "free fine arts" does not include those works in the decorative or industrial arts. See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916); HRL 063320, dated September 27, 1979. The Explanatory Notes, which provide the official interpretation of the tariff at the international level, to Chapter 97, HTSUSA, reflect this interpretation by excluding works of conventional craftsmanship of a commercial character (ornaments, religious effigies, articles of personal adornment, etc.).

Heading 7113, HTSUSA, provides for articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal. The Explanatory Notes to Heading 7113, HTSUSA, state the following:

This heading covers articles of jewelry as defined in Note 8 of this Chapter, wholly or partly of precious metal or metal clad with precious metal, that is:

(A) Small objects of personal adornment (gem- set or not) such as rings, bracelets, necklaces, brooches. . .

Based on your description of the sample merchandise, the brooches meet the description of articles classified in Heading 7113, HTSUSA. Each of the three sample brooches is primarily composed of either gold or silver. Without viewing actual samples of the brooches, we cannot determine whether the brooches are made either of silver, of other precious metal, or of base metal clad with precious metal for classification purposes. The applicable rate of duty for the sample brooches ranges from 6.5 percent to 27.5 percent ad valorem depending on the composition of the brooch and the value of the individual pieces or parts.


Based on the foregoing analysis, the articles under consideration are classified as jewelry under Heading 7113, HTSUSA. Classification within this heading depends on the actual composition of the articles. HRL 083351, dated November 9, 1989, is hereby affirmed.


John Durant, Director
Commercial Rulings Division

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