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[^1].

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:

(1) 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);

(2) Whether the print is disposable (Ibid.);

(3) The cost ratio between the print and the frame (Ibid.; HQ 086131,
    dated March 1, 1990); and

(4) 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

[^1]: 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.