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HQ 959248




October 11, 1996

CLA-2 RR:TC:TE 959248 jb

CATEGORY: CLASSIFICATION

TARIFF NO: 9404.90.8020; 9404.90.8040; 6304.92.0000; 9404.90.8505; 9404.90.9550

Port Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: Decision on Application for Further Review of Protest Nos. 3901-95-103050; 3901-95- 103051; 3901-95-103052; 3901-95-103053; classification of cotton quilts, pillow shams and toss cushion covers

Dear Sir:

This is a decision on application for further review of several protests timely filed on behalf of Nostalgia Home Fashions, between January and July of 1995, against your decision regarding the classification of certain cotton quilts, pillow shams and toss cushion covers. There are four protests in all, which cover 16 entries. All of the entries covered by protest numbers 3901-95-103050, 3901-95-103051, and 3901-95-103052, were liquidated on September 29, 1995. The remaining protest, 3901-95-103053, covers one entry which was liquidated on October 13, 1995. Samples were submitted to this office for examination

FACTS:

The subject merchandise consists of twenty four styles of quilts, pillow shams and toss cushion covers, made out of cotton fabric. Each style number is representative of a quilt, pillow sham and toss cushion cover and all three will display the same styling features. The Protestant describes the submitted merchandise as follows:

1. Style 1005, "Salem's Point", represents a traditional patchwork that is a variation of a sunflower design. The design is created by piecing together cuts of fabric in different shades of blue;

2. Style 1019, "Log Cabin Blue", represents a traditional patchwork known as log cabin. The design is created by piecing together a variety of rectangular and square shapes in shades of blues and reds;

3. Style 1140, "Sue's Wedding Ring", represents a traditional patchwork known as the double wedding ring. The design is created by piecing together cuts of fabric in green and peach colors;

4. Style 1407, " Log Cabin Green", represents a traditional patchwork known as log cabin. The design is created by piecing together a variety of rectangular and square shapes in greens, earth tones, blues and burgundy;

5. Style 1411, "Dresden Plate/Pink", represents a traditional patchwork known as Dresden plate. The design is created by piecing together cuts of fabric in a variety of pink shades;

6. Style 1412, "Twinkling Star", represents a traditional patchwork with a variation of a lone star design which is created by piecing together diamond, triangle, and square shapes in a variety of pinks and greens;

7. Style 1544, "Colonial Star", represents a traditional patchwork with a variation of a lone star design which is created by piecing together diamond, triangle and square shapes in a variety of burgundy and green;

8. Style 1708, "Donna's Wedding Ring", represents a traditional patchwork known as the double wedding ring. The design is created by piecing together cuts of fabric in predominantly pink and green tones;

9. Style 1847, "Starry Sky", represents a traditional patchwork with a variation of a lone star design created by piecing together diamond, triangle, and square shapes in shades of blue;

10. Style 1901, "Northern Star/Mauve", represents a traditional patchwork with a variation of a lone star design created by piecing together diamond, triangle, and square shapes in shades of pinks and greens;

11. Style 5683, "Giant Dahlia/Gold", represents a traditional patchwork totally created by piecing together cuts of fabric in shades of green, burgundy and gold;

12. Style 5816, "Handkerchief/Burgundy", represents a traditional patchwork based on a design known as "Trip Around the World". The design is created by piecing together cuts of fabric in shades of pink, burgundy and green;

13. Style 1003, "Cotillion", represents a traditional patchwork created by piecing together triangles and squares with a circular design in the center of the flower, in shades of blue. The center of the flower uses a zigzag stitch for construction;

14. Style 1201, "Garden Treasures", represents a traditional patchwork utilizing squares and triangles. It is created by piecing together a floral motif with a circular design in the center of the flower in shades of pink and blue. The center of the flower uses a zigzag stitch for construction;

15. Style 1304, "Angela's Wedding Ring", features crochet work in the design of a double wedding ring with scalloped edges;

16. Style 2134, "Double Wedding Ring/Crochet", features crochet work in the design of a double wedding ring with straight edges;

17. Style 1310, "Serenity", features crochet work in a design resembling a patchwork design called the "Dresden plate". This style also features piping;

18. Style 1215, "Crochet Star", features crochet work in a design resembling a traditional pieced patchwork star. This style also features piping as well as a few teardrops of embroidery stitching of the same color as the background;

19. Style 1302, "Pearled Wedding Ring", an adaptation of the traditional patchwork design "Double Wedding Ring", totally created with piping;

20. Style 1303, "Summer Splendor", consists of a hand-stenciled floral design outlined in straight construction stitching. There is also piping which creates additional floral designs, and several dots of embroidery stitching;

21. Style 1307, "Rose Bud", consists of a hand-stenciled floral design outlined by straight construction stitching. There is also piping to create an additional loop design;

22. Style 1312, "Fair Maiden", consists of a hand-stenciled floral design outlined by straight construction stitching. There is also piping to create an additional floral design and several dots of embroidery stitching;

23. Style 1301, "Morning Glory", consists of a hand-stenciled floral design in blues and greens. The floral design is outlined in straight construction stitching, and braid is used to separate the design blocks and the border;

24. Style 1315, "Felicia", consists of a hand-stenciled floral design in shades of pink. This style also features braid, trim and taping to create the floral and loop designs, and several dots of embroidery stitching of the same color as the background.

The Protestant argues that the quilts, pillow shams, and toss cushion covers were incorrectly classified by Customs in subheading 9404.90.8505, HTSUSA, and subheading 9404.90.9550, HTSUSA, respectively. The Protestant believes that Customs erroneously determined that the merchandise classified in those subheadings featured some form of embellishment. In the opinion of the Protestant, the merchandise at issue does not contain "...any embroidery, lace, braid, trimming, piping exceeding 6.35 mm or applique work". As such, the Protestant raises the following issues:

1. Whether the 6.35 mm limitation should apply to all of the notions products listed in subheading 9404.90.80, HTSUSA, that is, embroidery, lace, braid, trimming, and piping, except for applique work;
2. How the term "piping" is defined;
3. How the term "applique" is defined;
4. Whether crochet is, by inference, included as part of the different types of embellishments listed in subheading 9404.90.80, HTSUSA;
5. Whether there are de minimis amounts of embroidery that are permissible under subheading 9404.90.80, HTSUSA.

ISSUE:

What is the proper classification of the merchandise at issue?

LAW AND ANALYSIS:

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

Before we can distinguish among the different styles submitted to this office, we must first define the terms which will be determinative of the classification for this merchandise. Accordingly, as the Protestant has proposed in the submission, the meaning of the 6.35 mm size limitation, as it applies to piping, applique, crochet, and embroidery must be explicitly stated. Once these terms have been defined, we can look to each specific style and decide if it exhibits any features which might preclude classification in subheading 9404.90.80, HTSUSA.

Heading 9404, HTSUSA, provides for, among other things, articles of bedding and similar furnishings. Subheading 9404.90.80, HTSUSA, provides for articles of bedding and similar furnishings, of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work. The Protestant states in the submission that "in all of the exemplars which precede the 6.35 mm limitation, manufacturing specifications not only dictate the use of widths in production, but the 6.35 mm is considered a defining standard". That is to say, it is the Protestant's position that the 6.35 mm limitation referred to in subheading 9404.90.80, HTSUSA, is inclusive and applies to the embroidery, lace, braid, edging, trimming, and piping. As such, it is stated that in those styles which feature those embellishments, so long as they do not exceed the 6.35 mm limitation, they are not to be excluded from subheading 9404.90.80, HTSUSA.

We disagree with this interpretation. The size limitation applies only to the word "piping". A review of the history of the application of this size limitation in both the previous Tariff Schedule of the United States (TSUS) and the HTSUSA reveals that it is based on the ornamental provisions of Schedule 3 of the TSUS. Piping was considered functional and non-ornamented if it extended from a seam measuring 1/4 inch or less. Piping exceeding the 1/4 inch limitation was considered ornamented. As the change from the TSUS to the present HTSUSA was supposed to be "revenue neutral", the 1/4 inch measurement was converted to millimeters (6.35 mm) and added to the provisions of subheading 9404.90.80, HTSUSA, limiting the size of piping.

In the Protestant's submission it is stated that the piping present on some of the submitted styles does not exceed the 6.35 mm size limitation. In the Language of Fashion, by Mary Brooks Picken, 1939, at 112, "piping" is defined as:
narrow bias fold or cord used as finish on edges; any edge extending from another. Extensively used in dressmaking.

In Fairchild's Dictionary of Textiles, 1996, at 427, piping is defined as:
narrow fabric consisting of a flat part that can be sewn into a seam and a thicker cord along an edge that is left exposed. Used to finish raw edges on material or for decorative purposes in finishing by dressmakers.

In the Modern Textile and Apparel Dictionary, 1973, at 428, piping is defined as:
narrow bias fold or a cord used in finishing edges; any edge extending from another. Much used in dressmaking.

The definitions above mostly refer to piping as a finish used on the edges of a particular good. We would agree with this common understanding of the term "piping". However, the Protestant believes that it is a finish which may also be placed on the surface for decorative purposes. As such, the feature which is referred to as "piping" appears to be the flat braid trimmings that have been sewn in decorative patterns to the surface of the submitted merchandise. These fabric additions may also be called edgings but in this case, are being used as embellishments.

Heading 5810, HTSUSA, provides for embroidery in the piece, in strips or in motifs. The Explanatory Notes to heading 5810, HTSUSA, state that applique work consists of a ground 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;

(C) Braid, chenille yarn or other trimmings, etc., in the form of a design on the ground fabric.

It is the opinion of this office that noting the definition of applique work in the EN to heading 5810, HTSUSA, and the lexicographic sources noted above, the various trimmings used as embellishments on the surface of the subject merchandise qualify within the definition of applique work.

The Protestant states that the word "applique" is a term of art used to describe a specific technique which stipulates that "the parts of the design such as hearts, flowers, leaves, birds, and vases, are cut from fabrics and sewn onto the background fabric of the spread with simple overcasting, buttonhole, or seedstitch. Before stitching, the edges of the design are turned under to form a hemmed edge." It is emphasized that without the additional step of turning over the edges of the design, it is not applique. As such, the Protestant concludes that as none of the subject merchandise features the placement of the designs with their edges turned over, applique is not present. We disagree with this position. Appliques are not limited to particular fabrics, nor do they need to be cut out or applied in any precise manner. Many appliques are cut out from other fabrics, but this is neither a rule nor a requirement of applique. When an applique is created by cutting a shape or design from another fabric, raw edges will result. Turning over the edges of the applique prevents unraveling and creates a neat finish. However, the same result can be achieved by any of a variety of forms of stitching. In support of this we note several definitions of applique which do not mention turning over the edges of the design:

Decoration laid on and applied to another surface, as band or separate design of petals, leaves, figures, etc. Used on lace, fabric and leather. The Language of Fashion, by Mary Brooks Picken , 1939, at 3.

Material that is cut out and sewn, embroidered, or fastened to a fabric. Fairchild's Dictionary of Textiles, 1996, at 22.

A design made separately and then sewn on a cloth or a garment. Dictionary of Fiber and Textile Technology, 1989-1990, at 8.

A decoration or design made separately then embroidered, pasted, or sewn on a fabric or garment. Often used on lace, leather, woven or knitted fabrics. A Dictionary of Textile Terms, by Dan River, 1980, at 7.

The Protestant proposes that crochet is not lace and as such it is not included in the list of embellishments which would preclude classification in subheading 9404.90.80, HTSUSA. Furthermore, the Protestant states that crochet work is also not considered applique because there is no raw edge to finish, which the Protestant states to be an essential requirement of applique. Heading 5804, HTSUSA, provides for tulles and other net fabrics, not including woven, knitted or crocheted fabrics; lace in the piece, in strips or in motifs. The EN to heading 5804, HTSUSA, state:

Lace is an ornamental or decorative openwork fabric in which design elements (more or less intricate) formed by the intertwisting of threads are joined either by meshes, usually of regular size and shape, forming an apparent openwork ground fabric, or by ornamental links (brides) which themselves give pattern effects. The design elements and background of mesh or brides are usually produced simultaneously but sometimes the design elements are made separately and assembled afterwards.

Lace may be made by hand or machine.

The principal classes of hand-made lace are:

(C) Crochet lace (e.g., that known as Irish crochet lace). Unlike the varieties described above, crochet lace is not laid on a design or support when being made; it is made by hand with a crochet hook.

The National Import Specialist for lace has examined what the Protestant refers to as crochet, and in his opinion, the crocheted pieces on many of these items constitute a crochet lace. It is made by hand with a crochet hook and is a decorative openwork fabric. This would automatically include those items featuring the crocheted pieces as containing lace. Furthermore, there is nothing in the definitions already cited above which state, as the Protestant believes, that applique must feature a raw edge to finish. Those definitions simply call for the decoration or design to be made separately and then pasted, sewn or somehow fastened onto a fabric, as is the case with many of the subject styles.

Finally, the Protestant inquires into whether there are de minimis amounts of embroidery that are permissible under subheading 9404.90.80, HTSUSA. Embroidery is defined as:

From the Anglo-saxon word meaning edge or border. In time, the meaning implied the ornamental designs on fabric. The Modern Textile and Apparel Dictionary, 1973, at 212

Originally a needle-work of antique origin, consisting in executing designs with thread, yarn or other flexible material on a textile or leather ground. It differs from lace in that while embroidery always requires a ground to work on, which is an essential part of the needlework, lace has no such ground or if it is built up on any ground (like the needle lace on a pricked pattern) it is not part of the fabric. Fairchild's Dictionary of Textiles, 1970, at 209

Thus, in deciding whether ornamental stitching constitutes embroidery, we should evaluate whether it creates or enhances a design upon the fabric.

The courts have also focused upon the true meaning of "embroidery" as either functional or ornamental. A synopsis of those court determinations reveals that the courts focus on three factors:

1. Whether the stitching is ornamental;
2. Whether the stitching creates or enhances a design or pattern; and
3. Whether the stitching is superimposed upon a previously completed fabric or article or is stitching required to create or complete the fabric or article.

See, e.g., Sloane v. United States, 7 Ct. Appls. 463, 465, T.D. 37049, (1917); United States v. Field & Co., 10 Ct. Cust. Appls. 183, 190, T.D. 38550 (1920); United States v. Florea & Co., Inc., 25 CCPA 292, 297 (1938).

There have been cases ruled by this office where the embroidery present on the item was not considered significant enough to be classified as an embroidered item. In HQ 086860, dated November 9, 1990, for example, we ruled that a triangle embroidered on one corner of a handkerchief was negligible and did not warrant classification as an embroidered product. Additionally, in HQ 955576, dated June 1, 1994, we stated that just because the stitch used may be considered a type of embroidery stitch, it does not mean that its use automatically creates embroidery. It should be noted that HQ 955576 also pointed out that in Marshall Field & Co. v. United States, 19 CCPA 366, T.D. 45509 (1932), classifying a scalloped handkerchief, the court recognized the stitching along the scalloped edges as having two purposes, as ornamentation and as stitching to hold fast the edges of the article. It is thus clear, that a determination of whether the stitching inherent in a product is considered embroidery or not requires a careful evaluation of the three factors stated above. The Protestant emphasizes that what is claimed to be "straight construction stitching" does not qualify as embroidery because it would not be considered under the embroidery function of a sewing machine, and such stitching does not use embroidery thread. The Protestant states that the straight construction stitching present on some of these styles is akin to the chain stitch which was used in a decorative manner on a shirt ruled on by this office and held not to constitute embroidery (See, HQ 955473, dated June 23, 1994).

Although we agree that in some cases, an argument may be made in regard to the functionality of the embroidery, as in the cases cited above, we disagree that this is the case with the submitted merchandise. Under the TSUS, stitching similar to that present on some of the subject styles was considered embroidery and ornamentation. Despite the fact that this stitching is not highly elaborate, it is visible and does enhance the overall appearance of the product.
The embroidered dots and teardrop shapes are not insignificant and are readily visible, creating part of the design, as for example with the stamen, flower centers, etc. These features amount to embroidery. It is also our opinion that the straight stitching outlining the printed designs, creates definition in the flowers, adds veining to the leaves, creates petals, etc. Regardless of whether this stitching was specifically ordered, or if it was placed on by the factory, the fact remains that it is present and visible. The stitching present on some of the submitted styles meets the three factors enumerated in HQ 955576. That is, the stitching is ornamental, it creates or enhances a design or pattern and the stitching is superimposed upon a previously completed fabric or article.

Accordingly, having defined the pertinent terminology, we can discuss each style and its appropriate classification. Styles 1005, 1019, 1140, 1407, 1411, 1412, 1544, 1708, 1847, 1901, 5683, and 5816, do not contain any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work. The quilts associated with these style number are thus not precluded from classification in subheading 9404.90.8020, HTSUSA. The pillow shams for the corresponding style numbers are classified under subheading 9404.90.8040. The toss pillow covers however, for both the above stated styles and the remaining styles present a different problem. The submitted toss pillow covers contain a layer of stuffing. These type of toss pillow covers are classifiable under either heading 6304, HTSUSA, which provides for other furnishing articles, excluding those of heading 9404, or heading 9404, HTSUSA, which provides for, among other things, articles of bedding. The EN to heading 9404, HTSUSA, exclude cushion covers from that heading, noting inclusion in heading 6304, HTSUSA. The submitted pillow covers are of the same size as other pillow/cushion covers that have been classified in heading 6304, HTSUSA, and thus are excluded from heading 9404, HTSUSA. In HQ 953004 and HQ 953003, dated February 24, 1993, cushion covers fitted with a layer of plastic foam were classified under heading 6304, HTSUSA, based on the heading 9404, HTSUSA, exclusion. We are of the opinion that all of the subject toss pillow covers are classifiable as cushion covers under subheading 6304.92.0000.

The remaining styles all feature some sort of embellishment precluded by the terms of subheading 9404.90.80, HTSUSA. These are as follows:

Style 1003, features a triple layered applique held in place with zig-zag stitching;
Style 1201, features applique flower and leaves held in place with zig-zag stitching;
Style 1215, features sewn on trimming creating a floral pattern, tear drop shaped embroidery and straight stitching at flower center, and an appliqued crochet flower made up of eight separate diamond-shaped petals and a crocheted flower center;
Style 1301, features sewn on trimming which creates a border effect and a center octagon, stitching around the edges of the printed flower and leaf design;
Style 1302, features sewn on trimming creating a floral ring-shaped pattern;
Style 1303, features sewn on trimming creating a floral pattern, embroidered dots and teardrop shapes and stitching creating the veins on the leaves and petals on the flowers, along with stitching outlining the printed flower and leaf design;
Style 1304, features four crocheted ovals appliqued to form a ring;
Style 1307, features sewn on trimming creating a floral design, stitching around the printed flower design, appliqued pink fabric forming a frame effect around the edge; Style 1310, features crocheted applique in a floral design and sewn on trimming forming a pattern at the corners; Style 1312, features sewn on trimming creating a large floral pattern, embroidered dots creating the centers of flowers, stitching creating the veins of the leaves and outlining the leaves and petals of the printed flower and leaf design; Style 1315, features sewn on trimming forming an outer border and inner outline and sewn on flat braid or braided trim creating a floral design, embroidered dots and teardrop shapes highlighting the braid flowers. It is interesting to note that unlike the other styles, this style does not feature any stitching highlighting the printed flower and leaf design at the center. In comparison to the styles which do feature the additional stitching, this style is duller in appearance. Style 2134, features seven crocheted ovals appliqued to form a double ring.

Accordingly, the quilts corresponding to the styles stated above, which contain some form of embroidery, lace, braid, edging, trimming and applique work, are classifiable under subheading 9404.90.8505, HTSUSA. The corresponding pillow shams are classifiable under subheading 9404.90.9550, HTSUSA.

HOLDING:

The quilts corresponding to styles 1005, 1019, 1140, 1407, 1411, 1412, 1544, 1708, 1847, 1901, 5683, and 5816, are classified in subheading 9404.90.8020, which provides for, mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: other: other: of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work; quilts, eiderdowns, comforters and similar articles. The applicable rate of duty is 4.9 percent ad valorem and the quota category is 362.

The pillow shams for the above stated styles are classified in subheading 9404.90.8040, HTSUSA, which provides for, mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: other: other: of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work; other. The applicable rate of duty is 4.9 percent ad valorem and the quota category is 369.

The toss pillow covers for the above stated styles and styles 1003, 1201, 1215, 1301, 1302, 1303, 1304, 1307, 1310, 1312, 1315, and 2134 are classified in subheading 6304.92.0000, HTSUSA, which provides for, other furnishing articles, excluding those of heading 9404: other: not knitted or crocheted, of cotton. The applicable rate of duty is 7 percent ad valorem and the quota category is 369.

The quilts for styles 1003, 1201, 1215, 1301, 1302, 1303, 1304, 1307, 1310, 1312, 1315, and 2134 are classified in subheading 9404.90.8505, HTSUSA, which provides for, mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: other: other: other: quilts, eiderdowns, comforters and similar articles; with outer shell of cotton. The applicable rate of duty is 14.2 percent ad valorem and the quota category is 362.

The pillow shams for the above stated styles are classified in subheading 9404.90.9550, HTSUSA, which provides for mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: other: other: other: other; of cotton. The applicable rate of duty is 13.1 percent ad valorem and the quota category is 369.

The protest should be granted in part, as it applies to the designated styles stipulated above, and denied in part, as it applies to the remaining styles stipulated above, and a copy of this ruling should be appended to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a) Customs Regulations.

In accordance with Section 3(A)(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 mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,
John Durant, Director
Tariff Classification Appeals
Division

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