OT:RR:CTF:FTM H304472 PJG
Center Director
Consumer Products & Mass Merchandising Center
1699 Phoenix Parkway, Suite 400
College Park, Georgia 30349
Attn: Bradley Clemence, Import Specialist
RE: Application for Further Review of Protest No. 2704-19-102336; Tariff classification of an assortment of prepared and printed canvas art sets
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of
Protest No. 2704-19-102336, timely filed on February 5, 2019, on behalf of Target General Merchandise, Inc. (“Target” or “Protestant”). The AFR concerns the tariff classification of an assortment of prepared and printed canvas art sets called the “Doodlebliss Decorative Canvas Art Set” under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
In its submission, the Protestant describes the “Doodlebliss Decorative Canvas Art Set” as follows:
an assortment of Doodlebliss Decorative Canvas Art Sets (DPCI 081 -04-4511). As illustrated in the below photographs, each set consists of three 4’’ x 4’’ printed cotton canvases and four mini-markers. Each canvas is screen printed with black and white images so that they can be colored in with the included markers. They are stretched over a pine frame and are ready to be hung on a wall and displayed once decorated. Each set’s canvases form a triptych of copyrighted designs. These consist of either (1) the expression LOL (an abbreviation for “Laugh Out Loud”), (2) the expression OMG (an abbreviation for “Oh My God”), and (3) the expression BFF (an abbreviation for “Best Friend Forever”). The printed canvas frames account for 84% ($1.89) of the set’s FVA cost ($2.25) and 97% (0.0768 KG) of the set’s net weight (0.0796 KG). The four markers account for the remaining 16% (36¢) of the value and the remaining 4% (0.0028 KG) of the remaining net weight. The sets are marketed for use by children ages six and older.
The Protestant also submitted by email that the printed canvas is coated with a white acrylic gesso.
The decision protested is the tariff classification of an assortment of prepared and printed canvas art sets called the “Doodlebliss Decorative Canvas Art Set,” which were entered on September 26 and 27, 2017, and liquidated on August 10, 2018, and also entered on November 3 and 7, 2017 and liquidated on September 14 and 21, 2018, respectively.
U.S Customs and Border Protection (“CBP”) liquidated the entries for these products under heading 5901, HTSUS, and specifically in subheading 5901.90.40, HTSUS, which provides for “Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations: Other: Other.” Protestant claims that the “Doodlebliss Decorative Canvas Art Set,” should be classified under heading 4911, HTSUS, and specifically in subheading 4911.99.80, HTSUS, which provides for “Other printed matter, including printed pictures and photographs: Other: Other: Other: Other.”
ISSUE:
Whether the subject prepared and printed canvas art sets, called the “Doodlebliss Decorative Canvas Art Set,” are classified in heading 4911, HTSUS, which provides for “Other printed matter, including printed pictures and photographs,” or in heading 5901, HTSUS, which provides for “Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations.”
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation. See 19 U.S.C.
§ 1514(c)(3).
Protestant alleges that Further Review of Protest No. 2704-19-102336 should be accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts, or alternatively, pursuant to 19 C.F.R.
§ 174.24(c) because it involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. We find that Further Review of Protest No. 2704-19-102336 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2017 HTSUS provisions under consideration are as follows:
4911 Other printed matter, including printed pictures and photographs:
5901 Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations:
GRI 3(a) and (b) provide as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or
made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
The EN to GRI 3(b) states, in pertinent part:
(VI) This second method relates only to :
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
* * *
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which :
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
“Retail sale” does not include sales of products which are intended to be re-sold after further manufacture, preparation, repacking or incorporation with or into other goods.
The term “goods put up in sets for retail sale” therefore only covers sets consisting of goods which are intended to be sold to the end user where the individual goods are intended to be used together.
* * *
The EN to 59.01 states, in pertinent part:
(3) Prepared painting canvas.
Prepared painting canvas, usually of linen, hemp or cotton, sized and then coated on one surface with a mixture of linseed oil with other substances (e.g., zinc oxide). It is usually in pieces of a size suitable for use stretched on frames, but remains classified here even if backed with wood or cardboard.
Each “Doodlebliss Decorative Canvas Art Set” consists of seven articles: three printed cotton canvases that are stretched over a pine frame and four mini-markers. As such, we look to GRI 3 for the classification of this merchandise.
The EN(X) to GRI 3(b) states the following:
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
The EN(X) to GRI 3(b) also states that the phrase “covers sets consisting of goods which
are intended to be sold to the end user where the individual goods are intended to be used together.”
Applying the definition of the phrase “goods put up in sets for retail sale” provided in the EN(X) to GRI 3(b), the “Doodlebliss Decorative Canvas Art Sets”, meet the first requirement because the products each consist of articles that are prima facie classifiable in different headings of the HTSUS, specifically, the canvases and the mini-markers. In addition, the two products meet the second requirement because the articles are put up together to be used to carry out the specific activity of creating wall decoration. Finally, the two products are put up in a manner suitable for sale because they are packaged together for retail sale. Therefore, the “Doodlebliss Decorative Canvas Art Sets” are “goods put up in sets for retail sale,” which must be classified using GRI 3(b).
GRI 3(b) states, in relevant part, that retail sets shall be classified as if they consisted of the component which gives them their essential character. The EN to GRI 3(b) (VIII) lists factors to help determine the essential character of such goods: “the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” The U.S. Court of International Trade (“CIT”) has indicated that the factors listed in the EN to GRI 3(b) (VIII) are “instructive” but “not exhaustive” and has indicated that the goods must be “‘reviewed as a whole.’” The Home Depot, U.S.A., Inc. v. United States, 30 Ct. Int’l Trade 445, 459-460 (2006) (citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 384 (1971) (citation omitted)). With regard to the good which imparts the essential character, the court has stated that it is “‘that which is indispensable to the structure, core or condition of the article, i.e., what it is.’” Id. at 460 (citing A.N. Deringer, Inc., 66 Cust. Ct. at 383).
We find that the three printed canvases provide the bulk of the materials in the sets. According to the information provided by the Protestant, the weight and value of the canvases each outweigh that of the mini-markers. Moreover, the printed canvases are indispensable to the core of the set, because the mini-markers are merely used to decorate the printed canvases and ultimately create wall decoration. Therefore, the essential character of the two products is the printed canvases.
Next, we must determine the classification of the printed canvases. Notably, according to the Protestant, the printed canvas is prepared using a gesso primer. CBP has previously classified similar merchandise in heading 5901, HTSUS. See New York Ruling Letter (“NY”) N291353 (Nov. 14, 2017), NY N094556 (March 1, 2010), and NY N024604 (April 9, 2008). In NY N024604, CBP determined that the essential character of a set consisting of a prepared (primed) printed canvas stretched over a wooden frame and held in place with staples, paints, brushes, a palette, and an instruction guide was imparted by the prepared (primed) printed canvas (the canvas had a pre-printed design of a castle, clouds, hearts, and the word “princess”). CBP determined that the prepared (primed) pre-printed canvas was classified under heading 5901, HTSUS. Similarly, we find that the subject primed printed canvas is classified under heading 5901, HTSUS, as a prepared painting canvas. Specifically, the subject merchandise is classified in subheading 5901.90.40, HTSUS, which provides for “Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations: Other: Other.”
HOLDING:
The “Doodlebliss Decorative Canvas Art Set” is classified under heading 5901, HTSUS, and specifically, in subheading 5901.90.40, HTSUS, which provides for “Textile fabrics coated with gum or amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics of a kind used for hat foundations: Other: Other.” The 2017 column one, general rate of duty is 4.1 percent ad valorem. Duty rates are provided for convenience and are subject to change.
You are instructed to DENY the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division