HQ 083107

April 24, 1989

CLA‑2 CO:R:C:G 083107 LS

CATEGORY: Classification

TARIFF NO.: 207.00

District Director of Customs

909 First Avenue

Seattle, Washington 98174

RE: Application for Further Review of Protest No. 3004‑7‑000214, dated
December 16, 1987, filed by Border Brokerage Co., Inc., on behalf of
Jerry Wolfman, Pro‑testing your decision in the liquidation on September
18, 1987, of entry numbers 211‑0714045 and 211‑0722381, dated October
19, 1986 and December 7, 1986, respectively,

covering a shipment of wood carvings made in Canada.

Dear Sir:

This is our decision on the above referenced Application for Further
Review of Protest which was forwarded to our office by your memorandum
dated November 8, 1988.

FACTS:

The subject merchandise consists of 110 wood carvings created by 35
native Northwest Coast Canadian Indian artists. Most of the carvings are
of masks or animal figurines and are

considered a traditional and ceremonial art form. Jerry Wolfman is the
exporter of these carvings.

The wood carvings were entered under item 765.25, Tariff Schedules of
the United States Annotated (TSUSA), which provides for original works
of the free fine arts, not provided

for in items 765.03‑765.20, eligible for duty‑free entry. Your office
has liquidated the entries under item 207.00, TSUSA, which provides for
articles of wood, not specially provided

for, dutiable at the rate of 5.5 percent ad valorem.

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Border Brokerage Co., Inc., on behalf of Jerry Wolfman, contends in its
protest that the Northwest Coast Canadian Indian artists should be
afforded duty‑free status for the

following reasons. First, the artists find it impossible to collect
enough work to put on private shows because they rely on sales of their
art to provide income to house and feed their

families. Further, these artists, who live in remote parts of British
Columbia, have limited contact outside their villages other than trips
to cities to sell or trade their art. Second, the works should be
considered \"of the free fine arts,\" even if they are not shown in a
recognized gallery or museum, because they are more artistic than many
works in the Royal British Columbia Museum. Finally, because the Inuit
people of northern Canada had their soapstone carvings granted duty‑free
status on the basis of their unique and indigenous art form, the
carvings

of the Northwest Coast Canadian Indians should also be given duty‑free
status.

The protestant further cites to ORR Ruling 743‑68, dated August 21,
1968, which granted permission to certain Canadian agencies to certify
Canadian Eskimo carvings as original works of art under item 765.15,
TSUSA, a duty‑free provision. The protestant contends that Jerry
Wolfman, who has been involved in the purchase and

certifying agencies included in ORR Ruling 743‑68.

ISSUE:

Whether the subject wood carvings are classifiable under the duty‑free
provisions of items 765.15 or 765.25, TSUSA, or under item 207.00,
TSUSA, which provides for a duty rate of 5.5 percent ad valorem?

LAW AND ANALYSIS:

Item 765.15, TSUSA, provides for:

Original sculptures and statuary (including the first

10 castings, replicas, or reproductions made from a

sculptor\'s original work or model with or without a

change in scale and whether or not the sculptor is

alive at the time the castings, replicas, or repro‑

ductions are completed), all the foregoing made in

any form from any material as the professional pro‑

ductions of sculptors only, whether in round or in

relief, and whether cut, carved, or otherwise wrought

by hand or cast.

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Item 765.25 provides for:

Original works of the free fine arts not provided

for in the foregoing provisions of this part, in any

media including, but not limited to, applied paper

and other materials, manufactured or otherwise, such

as are used on collages.

19 CFR 10.48 sets forth specific requirements which apply

to the entry of works of art classifiable in items 765.10‑

765.25, TSUSA. 19 CFR 10.48(a) requires that the invoices for

such works of art show the name of the artist who produced them

and whether they are originals, replicas, reproductions, or

copies. 19 CFR 10.48(b)(1) requires, in pertinent part, that a

declaration by the artist be filed with the entry showing

whether the work of art is the original or, in the case of

sculpture, whether it is the original work or model or one of

the first ten castings, replicas, or reproductions. If it is

impossible to produce the declaration of the artist, a

declaration of the seller or shipper may be substituted. 19

CFR 10.48(b)(2). 19 CFR 10.48(e) states that with regard to

articles claimed to be free under item 765.25, TSUSA, \"the

district director may require proof of the character of the

article, including, when necessary, certificates from curators

or other recognized authorities on art, that the imported

article represents some school, kind, or medium of the free

fine arts.\"

Items 765.15 and 765.25 both require that the work of art be created by
a professional artist. In order to show that he or she has achieved
professional artist status, the artist must

be either: (1) a graduate of a course in fine art, or in sculpture, from
a recognized school of fine art, not industrial art; or (2) recognized
in art circles as a professional by the acceptance of his or her works
in public exhibitions limited to the free fine arts. CIE 160/56, dated
February 6, 1956. This information can be provided in the form of a
resume or biography. In addition, each work must be of such fine quality
and high artistic merit so as to be recognized as examples of the free
fine arts by certain art authorities. CIE 160/56, dated February 6,
1956; Headquarters Ruling Letter (HRL) 063320, dated September 27, 1979;
HRL 063591, dated March 3, 1980.

In order to be classified in items 765.15 and 765.25, the article must
be a work of the free fine arts, rather than the decorative or
industrial arts. Industrial or decorative artists include the potter,
glassmaker, goldsmith, weaver, woodworker, jeweler, and other artisans
and craftsmen.

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Although their works are considered both artistic and beautiful, they
are not recognized as works of the free fine arts. Works of the free
fine arts include painting and sculpture, as well as works in other
media as provided for in item 765.25. See United States v. Olivotti &
Co., T.D. 36309 (Ct. Cust. App. 1916); HRL 063320, dated September 27,
1979.

Items 765.15 and 765.25 both require that the work of art be original.
Item 765.15 provides that original sculptures include the first 10
castings, replicas, or reproductions made

from a sculptor\'s original work or model. Item 765.25 requires that the
work be a unique, one‑of‑a‑kind article. An article is \"original\" when
the artist exercises his own esthetic

imagination and conception in creating it. Forest Lawn Memorial Park v.
United States, 29 Cust. Ct. 224, 229, C.D. 1472 (1952).

Precluded from coverage in items 765.15 and 765.25, TSUSA, are articles
of utility or articles for industrial use. Headnote 1(iv) to Schedule 7,
Part 11, Subpart A, TSUSA.

Pursuant to ORR Ruling 743‑68, relied upon by the protestant, seven
certifying agencies selected by the Canadian Government\'s Department of
Indian Affairs and Northern

Development were given the power to certify Canadian Eskimo carvings as
works of art under item 765.15, TSUSA. An updated list of 9 certifying
agencies is found in HRL 058728, dated

December 18, 1978. The certifying agencies affix a special tag or label
to these works of art, thus obviating the necessity of the artist to
meet the requirement of filing an affidavit under

19 CFR 10.48(b)(1). However, the other requirements of 19 CFR 10.48 must
still be met.

We are not aware of a separate Customs ruling covering the soapstone
carvings of the Inuit people of northern Canada. The carvings of these
Eskimo people are already covered by ORR Ruling 743‑68. The
certification procedure set forth in that ruling only applies to
Canadian Eskimo art. Therefore, each of the 110 wood carvings created by
the 35 native Northwest Coast Canadian Indian artists, which are the
subject of this protest, must meet the requirements set forth in items
765.15 or 765.25, TSUSA, and in 19 CFR 10.48. These artists have not
shown that they have achieved professional artist status, i.e., that
they have graduated from a recognized school of fine art or that they
are recognized in art circles as professionals by the acceptance of
their works in public exhibitions limited to the free fine arts.
Therefore, the subject wood carvings do not qualify for duty‑free entry
under either item 765.15 or item

765.25, TSUSA. Since the professional artist status criteria is not met,
we need not reach the issue of whether the other requirements of

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Headnote 3 to Schedule 7, Part 11, Subpart A, TSUSA, provides that
\"/s/culptures and statuary not covered by item 765.15 are covered in
other parts of the schedules on the basis

of the component materials of which they are made.\" Articles which are
not considered original works of the free fine arts under item 765.25,
TSUSA, are also classified according to the

component material in chief value. See, e.g., New York Ruling Letter
802603 (batik which did not qualify under item 765.25, TSUSA, was
classified as an article, not specially provided

for, of textile material).

Accordingly, the 110 wood carvings were properly classified under item
207.00, TSUSA, as articles not specially provided for, of wood.

HOLDING:

For the foregoing reasons, Customs properly classified the merchandise
under item 207.00, TSUSA, as articles of wood not specially provided
for, dutiable at the 1987 rate of 5.5

percent ad valorem. Therefore, the protest should be denied. A copy of
this decision should be sent to the protestant along with the Form 19
Notice of Action.

Sincerely,

John Durant, Director

Commercial Rulings Division