CLA-2 RR:TC:TE 959184 CAB
T. Randolph Ferguson, Esq.
Glad & Ferguson
One Sutter Street
Tenth Floor
San Francisco, CA 94104
RE: Country of origin and tariff classification of a hand painted
canvas; Section 102.21(c)(2), Customs Regulations; Heading 5209;
Heading 9701
Dear Mr. Ferguson:
This is in response to your inquiry of April 17, 1996,
requesting (1) reconsideration of Headquarters Ruling Letter
(HRL) 953931, dated September 29, 1993, (2) a country of origin
determination for a hand painted canvas, (3) and the
determination of whether textile quota restrictions apply to the
canvas. Your request is on behalf of ST Design, Inc. A sample
was submitted for examination.
Customs will address the proper tariff classification and
whether quota restrictions apply to the subject merchandise under
the Harmonize Tariff Schedule of the United States Annotated
(HTSUSA), and make a determination as to the proper country of
origin of the subject merchandise pursuant to Section 102.21,
Customs Regulations. Customs will not, however, reconsider HRL
953931. Section 177.2(b), Customs Regulations, 19 CFR
177.2(b)(2)(ii)(C), provides that if a person to whom a ruling
letter is issued disagrees with the tariff classification set
forth in the ruling issued by the New York Region or other Area
or District offices, he may petition this office for review of
the ruling. HRL 953931 was not issued to your client or an agent
of your client and therefore, you do not have standing to request
its reconsideration under 19 CFR 177.
FACTS:
The merchandise at issue is a hand painted 100 percent
starch impregnated cotton canvas fabric and measures 16 " x 20".
The canvas is intended for use as a needlepoint canvas. The
canvas depicts a scene of a lamb. Other imported canvases might
depict various animals, humans, landscapes, or still life figures
and might be imported in rectangular shape measuring
approximately 14 ¬" x 13 «" . You state that the canvases are
painted entirely by hand, in limited number, under license. You
further contend that the subject canvas is properly classifiable
under Heading 9701, the provision for paintings, drawings and
pastels, executed entirely by hand.
The merchandise is manufactured as follows: Cotton canvas is
sourced in either Switzerland or Germany; In Switzerland or
Germany, the 100 percent cotton canvas which weighs more than
200g/m2 is impregnated with starch (amylaceous); The cotton
canvas is then transported to the Philippines where it is cut to
size and thereafter hand painted with a brush, using acrylic
paints.
ISSUES:
1. What is the proper tariff classification and applicable
quota restraints for the subject canvas?
2. What is the proper country of origin of the subject
merchandise?
LAW AND ANALYSIS:
TARIFF CLASSIFICATION
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
The subject merchandise is potentially classifiable under
two different headings, Heading 5209, HTSUSA and Heading 9701,
HTSUSA.
Heading 5209, HTSUSA, is the provision for woven fabrics of
cotton, containing 85 percent or more by weight of cotton,
weighing more than 200 grams per square meter. Subheading
5209.51.60, HTSUSA, specifically provides for other printed woven
fabrics of cotton, containing 85 percent or more by weight of
cotton, weighing more than 200 grams per square meter.
As stated above, you contend that the subject hand painted
canvas is properly classifiable under Heading 9701, HTSUSA, the
provision for paintings, drawings and pastels, executed entirely
by hand. The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN), although not legally binding,
are the official interpretation of the tariff at the
international level. The EN to Heading 9701, HTSUSA,
specifically excludes certain articles from classification under
Heading 9701, HTSUSA. The EN specifically excludes, "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."
Similar language was found under the previous tariff, Tariff
Schedules of the United States (TSUS), in defining "work of art".
Though the HTSUSA has replaced the TSUS, the TSUS is sometimes
consulted for guidance due to the similarity of terms and
definitions of certain provisions. In HRL 025378, dated February
16, 1973, under the TSUS, Customs considered the dutiable status
of 100 percent silk embroidered pictures. Customs determined the
following:
Item 76525, TSUS, of this subpart, provides for the free
entry of original works of the free fine arts in any media
including, but not limited to, applied paper and other
materials, manufactured or otherwise, such as are used on
collages. Hand-embroidered pictures may be considered as a
media of the free fine arts under this provision. However,
this provision is limited to creations that are original in
design, conception, and execution. The creation must be of
such fine quality and high artistic talent so as to be
recognized as examples of the free fine art by recognized
art authorities, as distinguished from works that are
representative of the decorative or industrial
arts....Embroidered pictures which do not qualify under the
provision for original works of the free fine arts would
probably be classified under the provision for silk
furnishings.
Similarly, in HRL 088091, dated November 9, 1990, regarding
the classification of bridal garments made of goat skin and glass
beads, and HRL 087771 dated November 15, 1990, concerning hand
embroidered articles, it was determined that neither of those
articles qualified as "works of art" under Chapter 97, HTSUSA.
In both instances, despite the evident craftsmanship and beauty
of the articles, the merchandise was classified according to its
constituent materials. Moreover, in HRL 951170, dated May 26,
1992, Customs encountered the issue of whether ordinary jackets
and vests were classifiable under Heading 9701, HTSUSA, after an
artist attached a variety of paints, beads, jewels, lace, and
small wooden figures for artistic purposes. Customs concluded
the following:
Despite the ability of the artist to transform ordinary
men's jackets or vests into art clothing, their
classification does not appear to be within the Works of Art
provision. The determinative factors which lead us to this
conclusion can be summed up as follows: (1) the
wearable art is still worn as clothing (2) the merchandise
is excluded by EN of heading 9701, Section XXI, A(d), which
excludes hand decorated manufactured articles (3) the
garments, though of fine craftsmanship and aesthetic appeal,
are not of the fine quality recognized as examples of free
fine art by recognized art authorities.
You cite HRL 955200, dated October 21, 1993, to support your
claim that the subject painted canvas is properly classifiable
under Heading 9701, HTSUSA. In HRL 955200, Customs determined
that batik paintings completed by hand were classifiable under
Heading 9701, HTSUSA. You state, "[i]n the instant case, the
paintings on the cotton canvas material are produced entirely by
hand. Each painting is done with a brush using acrylic paint on
the heavy canvas." Despite your contention, Customs is of the
opinion that the batik of HRL 955200 is significantly different
from the subject canvas. Granted, the canvas in this case is
painted entirely by hand. However, after the canvas is
embroidered using the needlepoint technique, the hand painting
will not be seen. The chief reason for one to purchase the
subject canvas is not for its hand painted canvas, instead its
for the needlepoint embroidery that will result from using the
painted canvas as an outline. Whereas, in the case of the batik,
whether it is framed or unframed, the hand painting remains
visible. In fact, the painting is the principal reason for
purchasing such a batik. In essence, the batik is a work of art
displayed for its artistic appeal, while the hand painted canvas
is intended as a diagram that is concealed after its embroidered.
As stated above, the EN are not legally binding, however
they are consulted by Customs for guidance in interpreting the
nomenclature at the international level. The EN to Heading 9701,
HTSUSA, specifically excludes hand-decorated manufactured
articles such as wall coverings consisting of hand-painted woven
fabrics. You assert that due to Subheading Note 1 (ij), Section
XI, HTSUSA, the subject canvas is precluded from classification
in subheading 5209.51.60, HTSUSA, which is the subheading for
other printed woven fabrics of cotton, containing 85 percent or
more by weight of cotton, weighing more than 200 grams per square
meter. Subheading Note 1 (ij), Section XI, HTSUSA, defines
"printed woven fabric" as:
Woven fabric which has been printed in the piece, whether or
not made from yarns of different colors.
(The following are also regarded as printed woven fabrics:
woven fabrics bearing designs made, for example, with a
brush or spray gun, by means of transfer paper, by flocking
or by the batik process.)
The process of mercerization does not affect the
classification of yarns or fabrics within the above
categories.
You state each painting is done on the canvas after the
canvas has been cut into a rectangular shape. Thus, the
paintings are not made while the canvas is "in the piece," but
only after the canvas has been cut and thus, the cut canvas
cannot be considered as "in the piece". As a result, the process
falls outside of the definition for "printed woven fabric"
("woven fabric which has been printed in the piece...") found in
subheading Note 1 (ij) of Section XI of the HTSUSA, which
controls classification under textile subheading 5209.51.60.
It is your contention that the paintings are not completed
while the canvas is in the piece. Instead the paintings are made
only after the canvas has been cut. While there is no specific
definition in the tariff or the EN that discusses the meaning of
fabric in the piece, it is helpful to look to Note 7, Section XI,
HTSUSA, which discusses made up textile articles and states the
following, in pertinent part:
For the purposes of this section, the expression "made up"
means:
(a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely
needing separation by cutting dividing threads) without
sewing or other working (for
example, certain dusters,
towels, tablecloths,
scarf squares, blankets)
* * *
The EN to Section XI, HTSUSA, sheds light on the factors
that convert fabric from "fabric in the piece" to a made up
article. The EN state, in pertinent part:
(2) Produced in the finished state, ready for
use...However, rectangular (including square) articles
simply cut from larger pieces without other working and
not incorporating fringes formed by cutting dividing
threads are not regarded as "produced in the finished
state" within the meaning of this note. The fact that
these articles may be presented folded or put up in
packing (e.g., for retail sale) does not affect their
classification.
Based on Note 7, Section XI, HTSUSA, and the applicable EN,
merely cutting to a square or rectangle, as in this case, does
not preclude the cotton canvas from being fabric in the piece.
As stated above, subheading 5209.51.60, HTSUSA, is the provision
for other printed woven fabrics of cotton, containing 85 percent
or more by weight of cotton, weighing more than 200 grams per
square meter. The subject article is a woven printed 100 percent
cotton canvas which weighs more than 200g/m2, thus, it meets all
of the requirements provided in the cited subheading. Therefore,
based on the aforementioned reasons, it is Customs opinion that
these goods are properly classifiable in subheading 5209.51.60,
HTSUSA.
Similarly, in HRL 953931, September 29, 1993, Customs had
occasion to determine the proper tariff classification of a hand
painted needlepoint canvas comparable to the subject canvas. In
HRL 953931, the canvas was classified in subheading 5209.51.60,
HTSUSA.
COUNTRY OF ORIGIN
Pursuant to Section 334 of the Uruguay Round Agreements Act
(codified at 19 USC Section 3592), new rules of origin were
effective for textile products entered, or withdrawn from
warehouse, for consumption on or after July 1, 1996. These rules
were published in the Federal Register, 60 Fed. Reg. 46188
(September 5, 1995). Section 102.21, Customs Regulations
(19 CFR Section 102.21), sets forth the general rules to
determine country of origin. Thus, the country of origin of a
textile product is determined by a hierarchy of rules set forth
in paragraphs (c)(1) through (c)(5) of Section 102.21.
Section 102.21(c)(1) sets forth the general rule for
determining the country of origin of a textile or apparel product
when the good was wholly obtained or produced in a single
country, territory, or insular possession. As the subject canvas
has not been wholly obtained or produced in a single country,
territory, or insular possession, this section is inapplicable.
Section 102.21(c)(2) provides for instances where the
country of origin of a textile or apparel product cannot be
determined under Section 102.21(c)(1).
Section 102.21(c)(2) provides, in pertinent part:
Where the country of origin of a textile or apparel
product cannot be determined under paragraph (c)(1) of
this section, the country of origin of the good is the
single country, territory, or insular possession in
which each foreign material incorporated in that good
underwent an applicable change in tariff
classification, and/or met any other requirement,
specified for the good in paragraph (e) of this
section.
As stated above, the subject canvas is classifiable within
subheading 5209.51.60, HTSUSA.
Section 102.21(e) provides, in pertinent part:
Specific rules by tariff classification. The following
rules shall apply for purposes of determining the country of
origin of a textile or apparel product under paragraph
(c)(2) of this section:
5208-5212 A change to heading 5208 through 5212 from any
heading outside that group provided the change is
the result of a fabric-making
process.
In this case, the change to Heading 5209, HTSUSA, results
from a heading outside the aforementioned group and the change is
the result of a fabric-making process. Therefore, in accordance
with Section 102.21(e) and Section 102.21(c)(2), the country of
origin of the subject canvas is either Switzerland or Germany,
depending on where the cotton canvas fabric is sourced.
HOLDING:
The subject painted canvas is classifiable in subheading
5209.51.6090, HTSUSA, which is the provision for other printed
woven fabrics of cotton, containing 85 percent or more by weight
of cotton, weighing more than 200 grams per square meter, plain
weave duck. The applicable rate of duty is 8.8 percent ad
valorem and the textile restraint category is 219.
The country of origin of the subject canvas is Switzerland
or Germany, depending on where the cotton canvas fabric is
sourced, in accordance with Section 102.21(c)(2).
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, The Status
Report on Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
The holding set forth above applies only to the specific
factual situation and merchandise identified in the ruling
request. This position is clearly set forth in section 19 CFR
177.9(b)(1). This section states that a ruling letter is issued
on the assumption that all of the information furnished in the
ruling letter, either directly, by reference, or by implication,
is accurate and complete in every material respect.
Should it be subsequently determined that the information
furnished is not complete and does not comply with 19 CFR
177.9(b)(1), the ruling will be subject to modification or
revocation. In the event there is a change in the facts
previously furnished, this may affect the
determination of country of origin. Accordingly, if there is any
change in the facts submitted to Customs, it is recommended that
a new ruling request be submitted in accordance with 19 CFR
177.2.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division