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HQ 087170

September 14, 1990

CLA-2 CO:R:C:G 087170 WAW


TARIFF NO.: 9701.10.0000

Mr. Phillip B. Fleishman
40 Filbert Avenue
Sausalito, CA 94965

RE: Reconsideration and Revocation of Headquarters Ruling Letter (HRL) 086047; Hand-Painted Japanese Screen; Work of Art

Dear Mr. Fleishman:

This letter is in response to your request for a reconsideration of HRL 086047, dated February 28, 1990, concerning the tariff classification of Japanese screen paintings under the Harmonized Tariff Schedules of the United States Annotated (HTSUSA). Samples were not submitted along with your request; however, included in the literature which you provided for our review were photocopies of various screen paintings.


The instant merchandise consists of various hand-painted screens which will be imported from Japan. These screens are the folding, "byobu" type, averaging in age from 60 to 80 years old. They are comprised of wooden frames, covered with rice paper and held together with paper hinges. Sumi ink and water soluble colors are normally utilized in the painting of the items in question. The screens range in size from the two panel screen which measures approximately 60 inches X 60 inches to the full six panel screen which measures approximately 70 inches x 146 inches. The screens range in value from $1,000.00 to $6,000.00. There is painting on only one side of the screen. The importer has indicated that accompanying the screens, he imports special screen hanging hardware from Japan and supplies this hardware with almost every screen that is sold. These particular screens are not signed by the artists and some of them were painted at a particular school of painting in Japan, whereby several art students work on the same screen.

In HRL 086047, dated February 28, 1990, Customs classified the instant merchandise under the provision for "Other articles of wood: Wood blinds, shutters, screens and shades, all the foregoing with or without their hardware: Other" in subheading 4421.90.4000, HTSUSA. The importer disagrees with the aforementioned classification and maintains that the merchandise is more properly classified under subheading 9701.10.0000, HTSUSA, as a painting executed wholly by hand, and therefore entitled to duty free treatment under the HTSUSA.


Whether the sample merchandise is classified as a wood screen under subheading 4421.90.4000, HTSUSA, or whether it is entitled to duty free treatment under subheading 9701.10.0000, HTSUSA, as paintings, drawings and pastels executed entirely by hand.


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.

Subheading 9701.10.0000, HTSUSA, provides for "Paintings, drawings and pastels, executed entirely by hand. . . ." Articles which are classified under this subheading are entitled to duty free treatment under the HTSUSA. The Explanatory Notes to Heading 9701, HTSUSA, which constitute the official interpretation of the tariff at the international level, however, state that "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.), . . . are classified under their own appropriate headings." Thus, if the subject painted article is considered a screen, the above Explanatory Note would preclude free entry of the article under the HTSUSA. However, if the screen is merely the surface upon which the artist has executed his work, the finished creation may still be considered within the scope of the term "painting" in subheading 9701.10.0000, HTSUSA. Congress in providing for the free entry of paintings but excluding manufactured articles, such as screens, apparently desired to include paintings designed in their creation to appeal to the aesthetic sense of the observer as distinguished from those created for some utilitarian purpose. Pitt & Scott v. United States, 18 CCPA 326, 328, T.D. 44584 (1931).

The issue we are asked to address in this case is whether the sample merchandise should be assessed with duty as a "wood screen" or whether it is entitled to duty free entry as a "painting" as claimed by the importers.

In the case of Sanji Kobata et al. v. United States, C.D. 4213 (1971), the Customs Court set forth certain guidelines in determining whether a Japanese folding screen should be classified as a "wood screen" or as a "painting" for classification purposes. In Sanji Kobata, the court held that Japanese folding screens with hand-painted landscape scenes, which were estimated to be valued from $75.00 to $8,000.00, were duty free as paintings, rather than dutiable as wooden screens. The court stated that an examination of the artistic merit of the articles left no doubt that painting was an important element which contributed to the merchandise, its beauty and aesthetic value. In Sanji Kobata, the court relied on the case of United States v. Quon Quon Company, 46 CCPA 70, C.A.D. 699 (1959), for the proposition that use is of paramount importance in determining the identity of an article. Thus, in Sanji Kobata, a substantial amount of "use" testimony was introduced to demonstrate that the Japanese folding screens were primarily used as paintings to adorn a wall, and not as screens. The court stated that "[a]ll of the testimony left no doubt that the screens in question, as distinguished from the larger, taller and less fragile byobu screens, have never been and are not used as screens or room dividers."

In Sanji Kobata, the court also noted that whenever sales were made of the merchandise in question,"in 80 to 100 percent of the times the purchaser also purchased hanging devices." The court further stated that it is clear, that the hardware is purchased so that the merchandise may be hung on the walls.

Additionally, in Sanji Kobata, the testimony was introduced that the picture is always signed with the name of the artist. The witnesses stated that they have never seen two pictures to be identical, since all of the paintings are painted by hand and are original paintings.

Furthermore, in HRL's 553522 and 553857, dated March 26, 1989 and September 3, 1986, respectively, two folding screens were classified as paintings. In HRL 553522, the screen was painted by a renowned artist, exhibited at famous art galleries as an example of a fine art object, and valued in excess of $100,000.00. In that case, Customs concluded that it was highly unlikely that the screen would be utilized as a room divider or other utilitarian object, since its value lies almost exclusively in its identity as an unusual art object in the character of a painting. In HRL 553857, the antique screen was classified under the provision for paintings executed wholly by hand. In that case, the article was valued in excess of $63,000.00. In addition, subsequent to importation, hardware was placed over the frame at the joints to prevent the panels from folding and to permit them to be hung on walls. Customs stated that the elaborate paintings on the screen outweighed any utilitarian purpose the screen may fulfill.

Based on the new information provided by Mr. Fleishman in his letter of May 14, 1990, it is apparent that the merchandise in the instant case is similar to the merchandise described in the Sanji Kobata case and other Headquarters cases cited here. The sample screens are unique works of art which are designed to be used as wall hangings rather than as screens or room dividers. The literature reveals several types of screens on display as wall hangings. All of the merchandise is painted by hand, and no two screens are identical. With regard to the absence of a signature on several of the paintings, Mr. Fleishman has stated that often a master painter of a particular school of painting will not sign his name in deference to the acknowledged leader of that school. Thus, the absence of a signed painting is not an indication that the screen is not the work of a renowned artist.

Furthermore, Mr. Fleishman has stated that the screens are almost always imported with accompanying wall hanging hardware so that the merchandise may be mounted on the walls. The hardware is not sold separately, since according to Mr. Fleishman, it is used to mount screens in the majority of cases.

Moreover, the price of the screens in the instant case is comparable to the selling price of the screens in Sanji Kobata. In addition, there is evidence that one of the "byobu" screens is presently in the permanent collection of the Asian Art Museum in San Francisco.

Accordingly, based on the foregoing additional information submitted by Mr. Fleishman, and on our reconsideration of the subheadings at issue in this case, we have determined that our original classification of the article as a screen under subheading 4421.90.4000, HTSUSA, was erroneous, and that the merchandise is more properly classified as a painting under subheading 9701.10.0000, HTSUSA.


The sample screens are properly classifiable under subheading 9701.10.0000, HTSUSA, which provides for paintings, drawings and pastels, executed entirely by hand. Articles classified under this provision are entitled to be entered into the United States duty free.

HRL 086047 is revoked in accordance with Section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)).


John Durant, Director
Commercial Rulings Division

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