CLA-2 CO:R:C:T 954614 HP
Mr. Richard Rudin
District Director
U.S. Customs Service
P.O. Box 37260
Milwaukee, WI 53237-0260
RE: Further Review of Protest No. 3701-93-100086. Tapestry.
Dear Mr. Rudin:
This is in reply to your memorandum PRO-2-06-GL:MW:DD:RLR of
July 2, 1993, transmitting for further review Protest No. 3701-
93-100086.
FACTS:
The merchandise at issue consists of a Polish "Kelem" type
wool tapestry. The sample submitted is shared warp, and measures
approximately 15" x 36". The 88% wool / 12% flax tapestry has a
4" knotted fringe at the end of the warp yarns and features a
pictorial design. The tapestry was appraised by Customs as
properly classified under heading 5805, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), as a hand-
woven tapestry. The protestant claims the article to be a work
of art under heading 9701, HTSUSA. Merchandise classified under
this provision is entered duty free.
ISSUE:
Whether the tapestry at issue is considered a work of art
under the HTSUSA?
LAW AND ANALYSIS:
Heading 9701, HTSUSA, provides for paintings, drawings and
pastels executed entirely by hand, and collages and similar
decorative plaques. Although the tapestry is executed entirely
by hand, it is neither the kind of merchandise specifically
enumerated in this heading nor is it similar to the other
articles listed above. Accordingly, heading 9701, HTSUSA, is
inapplicable. No other heading in Chapter 97, HTSUSA, applies.
Heading 5805, HTSUSA, provides for, inter alia, hand-woven
tapestries of the type Gobelins, Flanders, Aubusson, Beauvais and
the like. The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System (Harmonized System) constitute the
official interpretation of the scope and content of the tariff at
the international level. They represent the considered views of
classification experts of the Harmonized System Committee.
Totes, Inc. v. United States, No. 91-09-00714, slip op. 92-153,
14 Int'l Trade Rep. (BNA) 1916, 1992 Ct. Intl. Trade LEXIS 158
(Ct. Int'l Trade 1992). While not treated as dispositive, the EN
are to be given considerable weight in Customs' interpretation of
the HTSUSA. Boast, Inc. v. United States, No. 91-11-00793, slip
op. 93-20, 1993 Ct. Intl. Trade LEXIS 19 (Ct. Int'l Trade 1993).
It has therefore been the practice of the Customs Service to
follow, whenever possible, the terms of the Explanatory Notes
when interpreting the HTSUSA.
The EN to this heading, at 802, defines the essential
characteristic of these tapestries as "that they are made up in
the form of panels bearing a complete, individual design,
frequently of a pictorial character." The EN also notes that
these "[t]apestries are used mainly for furnishing purposes, as
wall coverings .... Since it is clear that, due to its pictorial
design, that the instant tapestry is not intended to be a floor
covering of heading 5702, HTSUSA, classification within heading
5805 is appropriate.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 5805.00.2500, HTSUSA, textile
category 414, as hand-woven tapestries of the type Gobelins,
Flanders, Aubusson, Beauvais and the like, whether or not made
up, of wool. The applicable rate of duty is 3.5 percent ad
valorem.
Since classification of the merchandise as indicated above
results in the same rate of duty as the liquidated rate, you are
instructed to deny the protest in full. In accordance with
Section 3A(11)(b) of Customs Directive 099 3550-065, dated August
4, 1993, Subject: Revised Protest Directive, this decision should
be mailed by your office to the protestant no later than 60 days
from the date of this letter. Any reliquidation of the entry in
accordance with the decision must be accomplished prior to the
mailing of the decision. Sixty days from the date of the
decision the Office of Regulations & Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS, and to the public via the Diskette
Subscription Service, Lexis~, Freedom of Information Act, and
other public access channels.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division