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HQ 954614


December 28, 1993

CLA-2 CO:R:C:T 954614 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 5805.00.2500

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

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