HQ 083107: Application for Further Review of Protest No. 30047000214, dated December 16, 1987, filed by Border Brokerage Co., Inc., on behalf of Jerry Wolfman, Protesting your decision in the liquidation on September 18, 1987, of entry numbers 2110714045 and 2110722381, dated October 19, 1986 and December 7, 1986, respectively, covering a shipment of wood carvings made in Canada.

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 083107

	April 24, 1989

  CLA2 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. 30047000214, dated December 16, 1987, 	filed by Border Brokerage Co., Inc., on behalf of Jerry Wolfman, Protesting your 	decision in the liquidation on September 18, 1987, of entry numbers 2110714045 and 	2110722381, 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 765.03765.20, eligible for dutyfree 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 dutyfree 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 dutyfree status on  the basis of their unique and indigenous art form, the carvings
 of the Northwest Coast Canadian Indians should also be given   dutyfree status.

       	The protestant further cites to ORR Ruling 74368, 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 dutyfree provision.  The  protestant contends that Jerry Wolfman, who has been involved  in the purchase and  


  certifying agencies included in ORR Ruling 74368.

  ISSUE:

Whether the subject wood carvings are classifiable under  the dutyfree 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, oneofakind 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 74368, 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 74368.  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 dutyfree 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