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HQ 963601




February 15, 2000

CLA-2 RR:CR:TE 963601 jb

CATEGORY: CLASSIFICATION

TARIFF NO: 6302.31.9020; 6302.31.9010; 6304.92.0000; 6302.31.5020; 6302.31.9010

Area Director
U.S. Customs Service
11099 S. La Cienega Blvd
Los Angeles, CA 90045

RE: Decision on Application for Further Review of Protest No. 2720-99-100336; classification of bed linen

Dear Sir:

This is a decision on application for further review of protest number 2720-99-100336, timely filed on behalf of Between the Sheets Inc., against your decision regarding the classification of certain styles of bed linen. The entry at issue was liquidated on January 22, 1999. Samples were submitted to this office for examination.

FACTS:

Although the entry at issue consists of six different line items, the Protestant has issue with only four of those items. The merchandise at issue consists of four styles of bed linen, made of 100 percent cotton, described as follows:

Style Leaf Stripe consists of a flat sheet, a fitted sheet and two pillowcases. Neither the fitted sheet, the flat sheet, nor the pillowcases contain any embroidery, lace, braid, etc. The top hem treatment on the flat sheet features three additional pieces of fabric. The pillowcases feature a hidden closure at one end which is commonly referred to as a “European” style side closure. It is our understanding that the instant samples are bought, sold and used as pillowcases and not as pillow shams.

Style Mandarino consists of a pillow cover/pillow sham with scalloped edging all around which is finished with satin stitching.

Style Excelsior consists of a pillowcase and flat sheet which are packed separately. The pillowcase does not contain any embroidery and features a European style side closure. The top hem treatment on the flat sheet features three additional pieces of fabric, in addition to a decorative row of hemstitching along the inner edge of the top hem created by a row of small half punched holes which are held open by two rows of stitching. This decorative stitch is also found along the bottom hem of the sheet.

Style La Plume consists of a sheet and pillow sham which are packed separately. The top hem treatment on the flat sheet features three additional pieces of fabric, in addition to a decorative row of hemstitching along the inner edge of the top hem created by a row of small half punched holes which are held open by two rows of stitching. This decorative stitch is also found along the bottom hem of the sheet and on the pillow sham.

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.

All parties agree at the six digit level that the merchandise at issue (except for the pillow shams) is classifiable in heading 6302.31, HTSUS, in the provision for other bed linen of cotton, not printed. The issue arises at the eight digit classification level with respect to whether or not this merchandise is considered to contain “any embroidery, lace, braid, edging, trimming, piping or applique work.” The determinative issue in the proper classification for this merchandise thus turns on whether the stitches which are used to finish the sheets and pillowcases are considered embroidery.

Although the term “embroidery” is not defined in the tariff or the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), some guidance is offered in the EN to heading 5810, HTSUS, which provides for embroidery in the piece, in strips or in motifs. In addressing embroidery, the EN state:

Embroidery is obtained by working with embroidery threads on a pre-existing ground of...woven fabric...in order to produce an ornamental effect on the ground....The ground fabric usually forms part of the completed embroidery, but in certain cases it is removed...after being embroidered and only the design remains.

Embroidery may be hand or machine made. Hand made embroidery is of comparatively small dimensions. Machine made embroidery, on the other hand, is very often in long lengths.

In addressing embroidery with the ground retained after embroidering, the EN state, in relevant part:

This is embroidery in which the embroidering thread does not usually cover the whole of the ground fabric, but appears in the form of patterns on the surface or around its edges. The stitches used are varied and include running stitch, chain-stitch, back or lock-stitch, herring-bone stitch, point de post, seed-stitch, loop-stitch, buttonhole stitch. As a rule the entire design can only be seen on the right side of the fabric. Many varieties of embroidery have small holes or openwork produced by cutting, by boring the ground fabric with a stiletto or by withdrawing certain warp or weft threads (or both) from the ground fabric and then finishing or embellishing the fabrics with embroidery stitches. This adds lightness to the embroidery or may even constitute its principal attraction; examples are broderie anglaise and drawn thread work.

Some varieties of machine-made embroidery, in particular satin stitch embroidery and certain embroidered muslins, appear very similar to broche muslins and other broche fabrics (e.g., plumetis) classified in Chapters 50 to 55.

In HQ 955576, dated June 1, 1994, Customs gave a lengthy review of relevant court cases which addressed the meaning of “embroidery”. In essence the courts have pointed out that the use of an embroidery stitch does not automatically create embroidery any more than does the use of a decorative or ornamental stitch. The term “embroidery” basically signifies a form of ornamental work produced by the needle on a completed textile or other existing surface. This implies the ornamentation and not the creation of the textile or other surface which it is designed to embellish. In particular, the courts have focused on the following:

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

As was stated in HQ 955576,

The function or purpose of the stitching is a fundamental part of the definition of embroidery as reflected by the court decisions on the issue. Thus, classification of goods when affected by the presence of embroidery is different from that affected by the presence of lace, braid, edging, trimming and piping. Customs has taken the view that in regard to these latter features they need only be present on a good; their functionality, or lack of it, is not a consideration. However, functionality is a consideration in determining if stitching is or is not embroidery.

There have been cases ruled upon by this office where the embroidery present on the item was not considered significant enough to classify the good 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.

Having reviewed the fundamental approach Customs uses in making a determination with respect to “embroidery”, we can turn to the merchandise at hand. In the case of Style Leaf Stripe, we agree that this style does not contain any embroidery, lace, braid, etc. Although the top hem treatment features three additional pieces of fabric, this construction creates the top hem and is not considered purely decorative.

Additionally, in the case of the pillowcases featuring a hidden closure at one end (for both this style and style Excelsior), this European styling has been accepted by Customs as an alternative type of “pillowcase” closure (see HQ 959460, dated September 16, 1996) and thus classification as a pillowcase is appropriate.

GRI 6 provides that for legal purposes, classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRI 1through 5 in classifying goods at the subheading level. Since GRI 6 uses the phrase “for legal purposes” the preceding GRI are to be applied at the level necessary for the final legal classification of the goods for tariff purposes. GRI 6 requires the use of GRI 3 at the eight digit level in the HTSUSA, since it is that level at which the classification of the merchandise is ultimately determined. Thus in order to be classifiable as a “set”, the components must be classifiable in at least two different subheadings.

In the case of this style, at the heading level, we do not have “goods put up in sets for retail sale” within the meaning of GRI 3. Nor do we have sets at the subheading level because subheading 6302.31.90, provides for other bed linen, of cotton, not napped. It is only between competing ten digit statistical annotations that a disparity arises. It is our opinion that GRI 6 is not applicable in determining whether a “set” exists where the classification differences exist only at the ten digit level. Therefore the instant style Leaf Stripe is not considered a “set” for classification purposes and will be classified separately. See also, HQ 954947, dated February 17, 1994, HQ 083523, dated April 12, 1989, and HQ 082043, dated April 5, 1989.

We note that it is Customs position that GRI 6 can apply at the ten digit level only where there is an existing question as to which statistical annotation applies and where no other rule will resolve the matter. We note that GRI 6 would not apply where there are annotations providing for the reporting of the goods separately.

In the case of Style Mandarino, as this item is a pillow sham, decorative features are not an issue, and as such, this item is classified in the appropriate provision of heading 6304, HTSUS, as an other furnishing article.

The cases of Styles Excelsior and La Plume, however, are distinguishable. While 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. Although the Protestant describes the flat sheets as featuring separate pieces of fabric being connected by the decorative stitch, this in fact is not the case. We find the stitching along the inner edge of the top hems of the sheets and along the bottom edges of these styles to be embroidery. In both these styles when the hemstitch is removed the hem does not fall apart. The hem is sewn in place by a straight stitch. The decorative stitch appears to have been created subsequently by first punching a hole in the fabric and then holding it open with a series of stitches.

Similarly, although the Protestant argues that the stitching along the inner edge of the top hems is not “hemstitching”, when we reviewed a definition for this term in Mary Brooks Picken’s The Fashion Dictionary, 1973, at 190, we found the contrary to be true. Therein “hemstitch” is defined, in part, as:

To puncture fabric with a large machine needle and surround perforation with stitches in imitation of hand hemstitching.

In HQ 953296, dated April 26, 1993, a hemstitch on bed linen was considered embroidery because embroidery includes “drawnwork.” This stitch is the machine imitation of that stitch and is considered a form of embroidery.

When we compare these styles to the sheet found in Style Leaf Stripe, the difference is notable. Although all three styles are identical in construction, they differ in the fact that Styles Excelsior and La Plume feature the additional stitching discussed above which serves to enhance the top and bottom hems. This stitching creates a visible design which imitates traditional drawnwork. The Protestant’s submission states,

However, regardless of any decorative effect the stitching may have, it cannot be deemed “decorative” for purposes of classification where the stitching is clearly functional, i.e., it is necessary to attach a piece of fabric to the body to finish the article. Moreover, the stitching on BTS’ goods is not sewn “over” any existing seam or hem. Rather, BTS’ stitching actually forms the seam and, therefore, constitutes a necessary and utilitarian function to the completion and use of the linens.

However, our examination of this merchandise reveals the opposite, that is, this additional stitching is superimposed on the already completed hem. That being the case, the stitching is not functional but decorative. As such, both the flat sheet of Style Excelsior, and the sheet in Style La Plume are considered to contain embroidery and classified in subheading 6302.31.50, HTSUS. On the other hand the pillow sham of Style La Plume, is classified in heading 6304, HTSUS, as an other furnishing article, for the same reasons cited for Style Mandarino.

HOLDING:

The protest should be granted in part and denied in part, according to the classifications given below.

The flat and fitted sheets referred to as Style Leaf Stripe are classified in subheading 6302.31.9020, HTSUSA, which provides for, bed linen, table linen, toilet linen and kitchen linen: other bed linen: of cotton: other: not napped: sheets. The applicable general column one rate of duty is 7.1 percent ad valorem and the quota category is 361.

The pillowcases referred to as Style Leaf Stripe are classified in subheading 6302.31.9010, HTSUSA, which provides for, bed linen, table linen, toilet linen and kitchen linen: other bed linen: of cotton: other: not napped: pillowcases, other than bolster cases. The applicable general column one rate of duty is 7.1 percent ad valorem and the quota category is 360.

The pillow cover/pillow shams referred to as Style Mandarino and Style La Plume 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 general column one rate of duty is 6.7 percent ad valorem, and the quota category is 369.

The flat sheets in Style Excelsior and Style La Plume are classified in subheading 6302.31.5020, HTSUSA, which provides for, bed linen, table linen, toilet linen and kitchen linen: other bed linen: of cotton: containing any embroidery, lace, braid, edging, trimming, piping, or applique work: not napped: sheets. The applicable general column one rate of duty is 22.1 percent ad valorem and the quota category is 361.

The pillowcase in Style Excelsior is classified in subheading 6302.31.9010, HTSUSA, which provides for, bed linen, table linen, toilet linen and kitchen linen: other bed linen: of cotton: other: not napped: pillowcases, other than bolster cases. The applicable general column one rate of duty is 7.1 percent ad valorem and the quota category is 360.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commerical Rulings Division

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