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HQ W968295




January 19, 2007

CLA-2 RR:CTF:TCM W968295 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 4911.91.4040

Port Director
Customs and Border Protection
555 Battery Street
San Francisco, CA 94111

RE: Classification of Framed Prints from China

Dear Port Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2809-06-100227, timely filed on April 10, 2006, behalf of Silk Road Associates (Silk Road), concerning the classification of certain framed artwork from China under Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject imports are printed copies of various paintings which have been matted, mounted and permanently sealed in wooden frames of differing weights and sizes. The framed prints are intended for use as a decorative item and cannot be separated without causing substantial damage. It is unclear from the entry documents whether the pictures are printed using a lithographic or non-lithographic process. The surface of the prints has been coated with a clear, textured substance that gives the appearance of a brush-marked painting

The importer has referred to this coating as Decoupage. The term “Decoupage” ordinarily denotes products composed of cutouts and a heavy, clear coating. We note that the subject merchandise does not contain such cut-outs..

Upon entry, the merchandise was erroneously described as “wooden picture frames.” Accordingly, it was liquidated under subheading 4414.00.0000, HTSUS, which provides for: “[w]ooden frames for paintings, photographs, mirrors or similar objects.” This error first came to light when a United States Customs and Border Protection (CBP)
inspector at Jacksonville, Florida examined the shipment and found that the goods did not match the descriptions provided on the entry documents. When the importer was informed of the error, this protest was filed.

ISSUE:

What is the proper classification under the HTSUS for the framed prints from China?

LAW AND ANALYSIS:

Initially, we note that the 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 the liquidation of the date of entry made on March 18, 2005 (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 2809-06-100227 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.

At issue is whether the frame or the printed painting, imparts the essential character to the subject merchandise. The HTSUS provisions under consideration are as follows:

4911 Other printed matter including printed pictures and photographs:

Other:
4911.91 Pictures, designs and photographs:

Printed not over 20 years at the time of importation:

Other:

Lithographs on paper or paperboard:

4911.91.3000 Over 0.51 mm in thickness

4911.91.40 Other:

4911.91.4040 Other

4414.00.0000 Wooden frames for paintings, photographs, mirrors or similar objects.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not 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 T.D. 89-80. The ENs to heading 4911, HTSUS, provide, in pertinent part:

Framed pictures and photographs remain classified in this heading when the essential character of the whole is given by the pictures or photographs; in other cases such articles are to be classified in the heading appropriate to the frames, as articles of wood, metal, etc.

Classification of the subject merchandise is governed by essential character. According to the ENs, when “the essential character of the whole is given by the pictures,” framed paintings are classifiable under heading 4911, HTSUS. Explanatory Note VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods.” CBP has identified a number of factors indicative of the essential character of framed artwork. These include, but are not limited to:

The permanence with which the picture is mounted: Where the picture is easily removed, the frame will likely impart essential character (New York Ruling (NY) H87192, dated January 28, 2002; NY H89992, dated April 2, 2002; NY A86794, dated September 3, 1996); Whether the print is disposable (Ibid.);
The cost ratio between the print and the frame (Ibid.; HQ 086131, dated March 1, 1990); and Whether the frame and picture are displayed together (HQ 962891, dated November 16, 1999).

These factors make clear that the printed pictures impart the essential character. According to the import documents, the frames and prints have been permanently sealed together and must be displayed together. The pictures cannot be removed after purchase without causing substantial damage to both the frame and the print. Furthermore, cost breakdowns submitted by the port of entry indicate that the pictures cost between 16% – 36% more than their frames. The high value of each print establishes that they are not to be disposed of after purchase.

HOLDING:

If the pictures are printed using a non-lithographic process, the imports are classifiable under subheading 4911.91.4040, HTSUSA, which provides for “[o]ther printed matter, including printed pictures and photographs: Other: Pictures, Designs and Photographs: Other: Other”. The column one, general rate of duty is “free.”

If a lithographic process is used, the imports are classifiable under subheading 4911.91.30, HTSUSA, which provides for “other printed matter, including printed pictures and photographs: Other: Pictures, Designs and Photographs: Printed not over 20 years at the time of importation: Other: Lithographs on paper or paperboard: Over 0.51 mm in thickness.” The analysis for either classification is the same. The column one, general rate of duty is “free.”

The protest should be GRANTED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, 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 mailing of the decision. Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at 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

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