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HQ 953174


October 1, 1993

CLA-2 CO:R:C:T 953174 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 5810.99.0010

Andras Bende
Bende & Sons
180 Autumn Street
Passaic, New Jersey 07055

RE: Request for Reconsideration of NY 878821; embroidered crests; small crest placed on large piece of material; identity of merchandise is not as a motif but as an embroidery in the piece; proper classification remains in subheading 5810.99.0010, HTSUSA

Dear Mr. Bende:

This is in regard to your letter, dated November 25, 1992, requesting reconsideration of New York Ruling Letter (NY) 878221, dated October 14, 1992, classifying an embroidered crest. A sample was submitted to this office for examination.

FACTS:

The subject sample, measuring 2-1/2 inches by 2 inches, is a hand-embroidered crest made from metallic bullion with small portions of red, green and black yarn or fabric, and on which the word "Classic" appears. Around the crest portion, the sample has an excess of cut rectangular woven 100 percent wool visible ground fabric measuring 7-1/2 by 6 inches.

You state that the wool ground fabric is manufactured in the United States and that the embroidery labor and materials are furnished in Pakistan by the embroiderer. You add that this fabric is cut to the rectangular shape prior to exportation from the United States and that no further cutting is performed in Pakistan.

Our New York office issued you NY 878821, classifying the merchandise in subheading 5810.99.0010, HTSUSA, which provides for embroidery in the piece. You disagree with this classification and instead propose that it meets the requirements of an embroidery motif, qualifying for lower duty. ISSUE:

Whether this merchandise qualifies as embroidery "in the piece" or as embroidery "in motif" ?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 5810, HTSUSA, provides for embroidery in the piece, in strips or in motifs. The Explanatory Notes to heading 5810, HTSUSA, state in pertinent part:

(III) APPLIQUE WORK

This consists of a ground fabric of textile fabric or felt on which are sewn, by embroidery or ordinary stitches:

(B) Ornamental motifs of textile or other materials. These motifs are usually a textile fabric (including lace), of a texture different from that of the ground fabric and cut in various patterns which are sewn to the ground fabric; in certain cases, the ground fabric is removed at the places covered by the applied motif.

All varieties of embroidery described remain within this heading when in the following forms:

(1) In the piece or in strips of various widths. These pieces or strips may bear a series of identical designs, whether or not intended for subsequent separation to be made up into finished articles (e.g., strips of embroidered labels for marking articles of apparel, or pieces embroidered at regular intervals intended to be cut up and made up into bibs).

(2) In the form of motifs, i.e., individual pieces of embroidered design serving no other function than to be incorporated or appliqued as elements of embroidery in, for example, underwear or articles of apparel or furnishings. They may be cut to any shape, backed or otherwise assembled. They include badges, emblems, "flashes", initials, numbers, stars, national or sporting insignia, etc.

In support of your claim that the merchandise is in fact a motif, in your letter you contend that "the imported item is a motif consisting solely of the hand embroidered gold bullion and color thread design, without the background material". In fact, the good as imported is a rectangular piece of ground fabric onto which a design has been embroidered. As such, it does not consist solely of a motif.

The terms of the EN to heading 5810, HTSUSA, are clear in their definition of "motif", i.e., "serving no other function than to be incorporated or appliqued as elements of embroidery..." In the case of the subject sample the crest is not the only factor for consideration; the ground fabric must also be considered. The latter creates potential for a variety of uses.

In its imported condition, the identity of the good is not fixed with certainty as a motif. The embroidered crest measuring approximately 2-1/2 inches by 2 inches is comparatively smaller than the 7-1/2 inches by 6 inches piece of material serving as the ground fabric. Due to this discrepancy in the crest to ground fabric ratio, it is easy to surmise that the piece of material may later be cut and used in many different ways. As you state yourself in your letter, the imported article is later transformed into a blazer/jacket pocket. However, because at this point the merchandise is neither clearly dedicated to use as a pocket nor has the essential character of a pocket, your suggested alternative classification for the merchandise as an unfinished component must also be rejected.

Additional U.S. Note 1 to chapter 58 states in pertinent part:

The rates of duty applicable to subheadings 5810.91, 5810.92 and 5810.99 are: column 1 (General), 8.4%, but in the case of embroidery in the piece not less than the rate which would apply to such product if not embroidered...

Accordingly, because the good has not lost its identity as fabric in the piece, our New York office was correct in applying Additional U.S. Note 1 to chapter 58 and determining that the sample is not a "motif" but rather an embroidery "in the piece", with a duty rate applicable to the ground fabric if not embroidered.

As noted, the wool ground fabric is manufactured and cut in the United States. Embroidery is considered to be an acceptable assembly process under subheading 9802.00.8060, HTSUSA, which provides for articles assembled abroad, if the requirements of the Customs Regulations are met. Though an allowance will be made for the value of the supplied American made wool fabric if it is returned to the United States in the same sizes as sent, no allowances will be made for the Pakistani made bullion or thread when imported into the United States.

HOLDING:

The subject sample was correctly classified in subheading 5810.99.0010, HTSUSA, which provides for embroidery in the piece, in strips, or in motifs, other embroidery, of other textile materials, of wool or fine animal hair. The rate of duty is 36.1 percent ad valorem, based on Additional U.S. Note 1 to chapter 58, HTSUSA, using the rate applicable to the wool ground fabric under either subheading 5112.11.2060, HTSUSA, or subheading 5112.19.9040, HTSUSA. Subheadings 5112.11 and 5112.19, HTSUSA, provide for woven fabrics of combed wool, of a weight not exceeding 200 g/sq. meter. Goods of subheading 5810.99.0010, HTSUSA fall within textile category 414.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), and issuance of the U.S. Customs Service which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) categories, your client should contact the local Customs Office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,


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