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