HQ 956675: Application For Further Review of Protest No. 5201-94-100313; Wholesale Art & Frame Ltd., and Classification of Paintings Made With Use of Stencils

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 956675  

                        November 23, 1994


CLA-2 CO:R:C:F 956675 K

CATEGORY: Classification 

TARIFF NO.: 6307.90.99

District Director
U.S. Customs Service
6601 N.W. 25th St.
Miami, Florida 33102-5280

RE: Application For Further Review of Protest No. 5201-94-100313;
    Wholesale Art & Frame Ltd., and Classification of Paintings
    Made With Use of Stencils

Dear District Director:

     The following is our response to the referral by your office
received on or about June 22, 1994, of the request for further
review of the above-referenced protest.

FACTS:

     The consumption entry covering the imported paintings from
Hong Kong was liquidated on March 25, 1994, under the provision
for other made up articles, other, in subheading 6307.90.99,
Harmonized Tariff Schedule of the United States (HTSUS), with
duty at the rate of 7 percent ad valorem.  A timely
classification protest under 19 U.S.C. 1514 was received on May
12, 1994, with a request to reliquidate the entry under the
provision for paintings, executed entirely by hand, in subheading
9701.10.0000, HTSUS, free of duty.

     An invoice refers to the imported merchandise as original
oil paintings.  Three paintings, which measure 23 1/4 " x 19
1/4", were taken from the shipment as samples, and referred to
the Customs Laboratory with the question whether the paintings
were done by hand and whether any mechanical process was
involved.  The laboratory report stated that "the paintings
showed evidence that a mechanical device (a stencil) was used in
the production of the paintings" and that "the paintings were not
executed entirely by hand."

     The protestant does not dispute the report that stencils
were used in the production of the shipment of paintings.  The
protestant asserts that the Customs Service erroneously concluded
                               -2-

that stenciling constitutes a mechanical reproduction which is
contrary to the weight of the evidence of the art world.  The
protestant has submitted documentation to establish that some
artists may use a stencil (and sometimes combined with the use of
an air brush) to produce a painting, but it does not constitute 
a mechanical reproduction.

     For purposes of this decision, we assume that the paintings, 
as imported, are not mounted and must be framed after
importation.

ISSUE: 

     The issue is whether the use of stencils to produce
paintings results in paintings that are not "executed entirely by
hand" and, therefore, precluded from coverage under subheading
9701.10.0000, HTSUS.

LAW AND ANALYSIS:

     Subheading 9701.10.0000, HTSUS, provides for the free entry
of paintings, drawings and pastels, that are executed entirely by
hand.  The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, which represents the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and General Rules of
Interpretation of the HTSUS.  The EN for paintings, subheading
9701.10.0000 states that

     As these works must be executed entirely by hand,
     articles obtained wholly or partly by any other process
     are excluded, for example, paintings, whether or not on
     canvas, obtained by photomechanical processes;
     paintings executed by hand on an outline or on a
     drawing obtained by ordinary engraving or printing
     processes; so-called "authentic copies" of paintings,
     obtained by means of a number of masks or stencils,
     even if these copies are certified authentic by the
     artist.  (Emphases are in the original.)

     However, copies of paintings remain in this group
     irrespective of their artistic value, if they are
     executed entirely by hand.

     The tariff schedule does not require that the paintings must
be original paintings to qualify under subheading 9701.10,0000. 
However, the tariff schedule does require that the paintings must
be "executed entirely by hand".  The EN states that "articles
obtained wholly or partly by any other process (that is, other
then entirely by hand), are excluded" and specifically cites the
use of stencils as an example of paintings that are not executed
                               -3-

entirely by hand.  Notwithstanding the assertion that noted
artists may partly use stencils in executing paintings, we
conclude that paintings obtained wholly or partly with the use of
stencils are precluded from coverage under subheading
9701.10.0000, HTSUS.

HOLDING:
     
     Oil paintings obtained wholly or partly by means of
stencils, that are not framed or mounted, are classifiable in
subheading 6307.90.99, HTSUS, as other made up articles...other,
with duty at the general rate of 7 percent ad valorem. 

     You are directed to deny the protest in full.

     In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto.  Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.

                         Sincerely,




                         John Durant, Director
                         Commercial Rulings Division