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HQ 089094

August 2, 1991

CLA-2 CO:R:C:F 089094 STB


TARIFF NO.: 4420.90.4000, 9206.00.2000, 6504.00.6000

Ms. Leona Lattimer
Northwest Coast Indian Art
1590 West 2nd Avenue
Vancouver, British Columbia
Canada V6J 1H2

RE: Steamed-bent cedar box, hand-painted drum, Whaler's hat constructed of woven grass, bark and root.

Dear Ms. Latimer:

This letter is in response to your letters of November 9, 1990 and March 14, 1991 concerning the classification of several items which are identified as Canadian Indian Art and include a steamed-bent cedar box, a hand-painted drum, and a whaler's hat constructed of woven grass, bark and root. Pictures of the items were submitted with the request.


The steam bent box is described as offering a "unique surface for Native Indian Artists." The side of the box is made from one piece of wood that is cut and grooved and then steam- bent. Many artists carving on these pieces use the four sides of the box to carve all sides of the crest or animal. The box depicted in the accompanying picture is of red cedar, with a design of a bear. It was created by Larry Rosso and is indicated as having a retail price of $6,000.00. It measures 18 inches by 18 inches by 23 inches. Normally, the individuals creating these items acquire a suitable piece of cedar wood, steam-bend the cedar themselves, and then carve and/or paint the bent box. Each artist bends his own box and individually paints it. Boxes can be carved without any painting, carved with painting, or just painted.

The drums are constructed of various animal hides and then painted. Two photos were submitted, both of which depict drums constructed of deer skin. One of the drums is by Reg Davidson, has a 23" diameter, and retails for $1,200.00. The other drum pictured is by Art Thompson, has a 15" diameter, and retails for $900.00. According to the inquirer, the artists make the entire drum, including the "hoop." They acquire the skin either by
purchase or trading. Normally, the skins are in a raw state and must be cleaned, scraped and marinated in lime solution to prevent deterioration. All this preparation is performed by the artist.

The final item to be described is the woven hat. The inquirer states that weaving in grasses, bark and roots is a tradition to the Northwest Coast Natives. Making a hat is labor intensive and takes three bundles of spruce root to make one hat. Two hats are depicted; the first is by Isabel Rorick, measures 13 inches by 15 inches in diameter at the base, and retails for $5,000.00. The second is by Jessie Webster, measures 9-1/2 inches by 10 inches in diameter and retails for $2,000.00.

According to the inquirer, all the artists involved are recognized artists.


Should the subject items be classified as "works of art" in Chapter 97 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

If any or all of the subject items are not classified as works of art, what is the proper classification?


The General Rules of Interpretation (GRI's) set forth the legal framework 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 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 (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.

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. [Emphasis added]. 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 the case first cited the court said (pp. 323-324):

***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.
[Emphasis added].

Thus, the nature of the utilitarian aspect of the instant articles is also a consideration in the determination of the applicability of Chapter 97, HTSUSA.

The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. Because the provision in question here is a four digit, or international level provision, they are particularly pertinent. The Explanatory Notes to heading 9701, HTSUSA, provide the following guidelines for determining which goods are not included within the scope of the tariff heading terms which include "paintings, drawings and pastels":

This group also excludes:

(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.

Finally, then, the question arises as to whether any or all of the items involved should be considered hand-decorated manufactured articles.

Examination of the above-cited HTSUSA language, Explanatory Notes, court decisions and Customs rulings leads us to the conclusion that the subject articles do not constitute the types of "works of art" that are entitled to duty-free treatment under Chapter 97. First, we note that "boxes" are specifically excluded from being considered a painting in Chapter 97, HTSUSA, in Explanatory Note (d), above. In HRL 087577, dated November 21, 1990, Customs ruled that hand-painted boxes from Russia were not classifiable in Chapter 97.

All of these items, including the boxes (carved, painted or both) are more akin to hand decorated manufactured articles and items of the decorative or industrial arts. Moreover, these items possess a utilitarian function. In your letter dated November 9, 1990, you state that you do not believe that these items will be purchased for their utility aspects but rather for their artistic value. It is our determination, however, that none of these items can be said to have a utilitarian purpose that is "clearly subordinate or nonexistent" or a utilitarian character that is "wholly lost in its artistic character." The given prices of these items are not unreasonably high for items that may be used in a utilitarian manner. Additionally, the
hats cannot be classified in Chapter 97, HTSUSA, because there is no provision for weavings and they do not qualify as sculptures.

The proper classification of these items, therefore, is in the headings and subheadings which most specifically apply to them. The steam-bent box is classifiable in the subheading for jewelry boxes and similar boxes; the drum is classifiable in the eo nomine provision for drums; the hat is classifiable in the eo nomine provision for hats and other headgear, not sewed.


The box described as a "steam-bent box" is classifiable under subheading 4420.90.4000, HTSUSA, the provision for wood marquetry and inlaid wood...other, jewelry boxes...other, not lined with textile fabrics. The applicable duty rate is 6.7% ad valorem. The painted drum is classifiable under subheading 9206.00.2000, HTSUSA, the provision for percussion musical instruments (for example drums, xylophones, cymbals, castanets, maracas), drums. The applicable duty rate is 4.8% ad valorem. The hats are classifiable under subheading 6504.00.6000, HTSUSA, the provision for hats and other headgear, not sewed. The applicable duty rate is 5% ad valorem plus $1.02 per dozen.

If otherwise qualified, the articles are entitled to a reduced duty under the United States-Canada Free-Trade Agreement. The applicable duty rates will be 4.6% ad valorem for the steam- bent box, 1.9% ad valorem for the drums and 3.5% ad valorem plus $1.02 per dozen for the hats.


John Durant, Director

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