CLA-2 OT:RR:CTF:TCM W968157 ASM
Matthew K. Nakachi, Esq.
Sandler, Travis & Rosenberg and Glad & Ferguson, P.C.
Attorneys at Law
1 Sutter Street
10th Floor
San Francisco, CA 94104
RE: Request for reconsideration of HQ 959184; Tariff Classification of
a hand painted canvas
Dear Mr. Nakachi:
This is in response to a request for reconsideration made on behalf of your client, Ameri-Canvas (previously ST Design, Inc.), concerning Customs and Border Protection (CBP) Headquarters Ruling letter (HQ) 959184, dated November 13, 1996, which classified a hand painted canvas under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample has been submitted to CBP for examination.
On September 9, 2008, we conducted a conference call with you in furtherance of your request for a meeting and your office requested additional time to make a new written submission. However, on September 17, 2008, we were advised by your office that a written submission would not be forthcoming and we should only consider the arguments made in the original petition in this matter.
FACTS:
The product at issue is a 100 percent cotton, plain weave, hand-painted fabric, which is intended as a needlepoint canvas. According to your submission. the merchandise is described as having various sizes and shapes, e.g., square, rectangular, trimmed to a diagonal or a bevel. You have further noted that the various paintings on the subject canvases are reproductions of copy-righted originals, which are painted entirely by hand, in limited number, under license.
In HQ 959184, CBP classified the subject merchandise 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.
In your submission, you assert that the subject article is an “amylaceous, hand-painted canvas” and argue that it should be classified in subheading 5901.10.00, HTSUSA, 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”.
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The following headings of the HTSUSA and ENs are under consideration in classifying the subject article:
5209 Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m2 : Other, Plain weave duck.
EN 5209 The Explanatory Note to heading 52.08 applies, mutatis mutandis, to the products of this heading.
EN 5208 Woven fabrics of cotton, containing 85% or more by weight of cotton, weighing not more than 200 g/m2 .
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:
EN 5901 (1) Textile fabrics coated…
These are generally plain weave woven fabrics,
usually of cotton, linen or man-made fibres, heavily
coated with gum or amylaceous (e.g., starch), of a
kind used in the manufacture of book outer covers,
boxes, spectacle or cutlery cases, knife sheaths, etc.
They may be unbleached, bleached, dyed or printed
and the surface is often goffered, pleated, shagreened (given a rough surface), embossed or otherwise worked.
Fabrics for similar uses, impregnated or coated with
plastics (e.g., imitation leathers) are excluded
(heading 59.03).
The heading does not cover the products described in
paragraphs (1), (2) and (4) above when made up as
described in Part (II) of the General Explanatory Note
to Section XI.
With regard to heading 5901, there are no chapter or section notes that specifically address that heading. In addition, it appears that the subject items would not qualify as “made-up” textile articles per the General EN to Section XI.
In A Manual of Chemistry by John White Webster, the following is extracted from the definition of “Amylaceous Substances”:
When wheat flour is formed into a Division paste with water, and then held
under a small stream of water, kneeding continually till the water runs off
coulourless, the flour is divided into two constituents, gluten and starch.
Thus, it would appear that a starchy substance must have been applied to the fabric to render it an “amylaceous substance”. However, heading 5901, HTSUSA, also specifically provides that the textile fabric be “of a kind used for the outer covers of books or the like” (emphasis supplied). The KoSa Dictionary of Fiber & Textile Technology (7th Edition) defines “Book Cloth” as “Print cloth treated with pyroxylin or starch and clay used in bookbinding”. In the instant case, the subject article is for needlepoint use and not intended for use as a book cover.
In the case of Primal Lite, Inc. v. United States, 15 F. Supp 2d 915 (1998) (affirmed by Primal Lite, Inc. v. United States, 182 F.3d 1362 (1999)), the Court of International Trade (CIT) stated that “The use of the term ‘of a kind’ is nothing more than a statement of the traditional standard for classifying importation by their use, namely that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs, i.e., the class or kind of merchandise”. Although indicative but not conclusive, CBP nonetheless finds that the guidance set forth by the courts to determine principal use may be helpful in establishing the principal use of such merchandise. Generally, the courts have provided several factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: (1) general physical characteristics, (2) expectation of the ultimate purchaser, (3) channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), (4) use in the same manner as merchandise which defines the class, (5) economic practicality of so using the import, and (6) recognition in the trade of this use. See Lennox Collections v. United States, 20 CIT 194, 196 (1996). See also United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert denied, 429 U.S. 979 (1976); Kraft, Inc. v. United States, 16 CIT 483, 489 (1992); and G. Heileman Brewing Co. v. United States, 14 CIT 614, 620 (1990).
Within the context of applying the above-mentioned factors to determine the principal use of the subject needlepoint fabric, we note the following:
Based on definitions from technical references, book cloth fabric and needlepoint fabric do not share the same physical characteristics;
The expectations of the bookbinder are such that the material will adhere to the backing, be washable, waterproof, not crease, peel, etc., while the needlepoint fabric only needs to be just stiff enough to allow for the needlepoint process to be performed;
These fabrics are sold in different channels of trade, i.e., book cloth would be sold to bookbinders and painted needlepoint fabric is usually sold in craft stores;
The usage of book cloth and painted needlepoint fabric is very different.
In addition, CBP has previously ruled on similar merchandise, classifying needlepoint fabric in heading 5209, HTSUSA. In CBP Headquarters Ruling (HQ) 953931, dated September 29, 1993, we classified a similar article consisting of 100 percent cotton, plain weave, hand painted fabric intended as a needlepoint canvas in 5209.51.6090, HTSUSA, as a printed woven fabric. This serves to support our classification in HQ 959184, which is the ruling now at issue. See also New York Ruling (NY) E80915, dated April 29, 1999; NY F89043, dated July 17, 2000; and NY J89510, dated October 7, 2003.
In view of the foregoing, we find that the subject sample is properly classified as an “other woven fabric of cotton” in heading 5209, HTSUSA. Therefore, HQ 959184, dated November 13, 1996, correctly classified the product.
HOLDING:
HQ 959184, dated November 13, 1996, is affirmed.
The subject merchandise, identified as a hand painted needle point canvas, is correctly classified in subheading 5209.51.6090, HTSUSA, which provides for “Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m2: Printed: Plain weave: Other, Plain weave duck”. The general column one rate of duty was 8.8 percent ad valorem (1996 HTSUSA). The textile category was 219.
With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas", which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site at the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.
Please note that the duty rates set forth in this ruling letter are merely provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division