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HQ 967190




December 20, 2004

CLA-2 RR:CR:TE 967190 ASM

CATEGORY: CLASSIFICATION

Tariff No.: 6304.19.0500

Area Port Director
Customs and Border Protection
1 East Bay Street
Savannah, Georgia 31401

RE: Request for Internal Advice 04/018; Classification of woven bedcovers with bullion yarn fringe

Dear Area Port Director:

This ruling is in response to your letter dated July 14, 2004, requesting Internal Advice regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of woven bed covers. The Request for Internal Advice was initiated by Alston & Bird LLP, on behalf of Mohawk Home, a division of Aladdin Manufacturing Corp. (“Importer”). Customs and Border Protection (CBP) has received the sample that was forwarded for examination. In a meeting, which took place on December 15, 2004, we listened to further arguments presented by counsel for the importer and two employees of the importer.

FACTS:

The sample is a bedspread, identified as style IB001 “Diamonds”, which is constructed of 100 percent woven cotton that has been tufted in a repeat diamond pattern. The sides and bottom edge have been finished with a bullion yarn fringe while the top edge is finished with a simple hem. The bullion yarn fringe is approximately 3-inches long. The edge under this fringe is finished with an overlock stitch. Although the request also refers to a “Wedding Ring” style bedspread, a sample was not submitted. However, for the purposes of this ruling, we have assumed that the “Wedding Ring” style bedspread is also constructed of 100 percent woven cotton and has the same edge treatment as the style IB001 “Diamonds” bedspread.

The subject bedspreads were entered on February 27, 2004, under subheading 6304.19.1000, HTSUSA, which provides for “Other furnishing articles, : Bedspreads: Other: Of cotton: Other”. On March 23, 2004, CBP issued a Request for Information. In response to this request, counsel for the importer submitted a sample of the style IB001 “Diamonds” bedspread. On May 13, 2004, CBP determined that the fringe on the bedspreads was “edging or trimming” and that the subject articles were properly classified in subheading 6304.19.0500, HTSUSA, which provides for “Other furnishing articles, : Bedspreads: Other: Of cotton: Containing any embroidery, lace, braid, edging, trimming, piping or applique work”.

In asserting classification of the merchandise in subheading 6304.19.1000, HTSUSA, counsel for the importer disagreed with CBP’s classification and filed a Request for Internal Advice. Specifically, it was asserted that the “fringe” on the subject bedspreads does not fall into the category of “edging” or “trimming” covered by subheading 6304.19.0500, HTSUSA, for the following reasons: (1) the “fringe” of the subject bedspreads is not comprised of fabric and fails to meet the technical or industry definitions of “trimming” or “edging”; (2) the “fringe” is comprised solely of yarn that is sewn onto the bedspreads to provide structural strength and functional weight to the bedspread early in the manufacturing process to enable it to hang properly over the surface and sides of the bed; (3) incorporation of the loops of twisted “fringe” into the bedspread prior to dyeing, drying, or finishing, is inconsistent with industry practices concerning the application of components generally recognized as “trimming” and “edging” which are usually applied in the final stages of the article’s production; and (4) the “fringe” of the subject bedspreads does not meet the definitions of “findings” and “trimmings” established in the Customs regulations governing qualification of various textile articles for preferential treatment under special programs.

ISSUE:

Whether or not the bullion yarn “fringe” on the bedspreads affects the classification of the merchandise at issue.

LAW AND ANALYSIS

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized

Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

We begin by noting that the classification of the subject merchandise at the eight digit level depends on whether or not the bullion yarn fringe is “edging” or “trimming” within the meaning of subheading 6304.19.0500, HTSUSA. The EN’s for this heading do not provide specific examples of edgings or trimmings within the meaning of this provision. However, CBP frequently refers to lexicographic sources for guidance in determining classification. In Fairchild’s Dictionary of Textiles, 7th Edition (1996), the term “edging” is defined as follows:

A broad term for material used as a decorative
trim on the edges of garments. This includes narrow lace, braid, and fringe of various forms and kinds. Often, one edge of the material is straight and the other indented or scalloped.

This definition identifies “edging” as a broad term, which includes “fringe of various forms and kinds” that are used to decorate edges. Accordingly, the bullion yarn fringe on this bedspread is specifically included as a form or kind of edging or decorative trimming under this definition. We further note that contrary to the assertions made by counsel for the importer, this definition does not require all “edging” to have one straight edge with the other edge indented or scalloped. If such a restrictive meaning were intended, the definition would have contained the word “always” rather than “often” when describing edging construction.

The counsel for the importer’s written submission sets forth the definition for “trimming” from the Fairchild’s Dictionary of Textiles, 7th Edition (1996):

1. Narrow fabric used as decorative or functional edging on apparel or furnishing fabric.
Process of decorating textile product.
Removing loose ends from made-up textile goods.

We disagree with the counsel for the importer’s assertion that this definition would preclude the bullion yarn fringe from being considered an “edging” or “trimming” because it is not a “fabric” or “material” as defined by the lexicographic authorities.

In a meeting which took place on December 15, 2004, counsel for the importer asserted that an “edging” or “trimming” must be pre-existing, i.e., ornamentation that has been separately fixed to a backing prior to attaching it to the bedspread. CBP does not agree that there is such a requirement under the HTSUSA. The Fairchild’s Dictionary of Textiles, 7th Edition (1976), specifically defines “fringe” as: “A trimming of pendant cords, loose threads or tassels” [emphasis supplied]. This definition encompasses the subject yarn, which has been attached to the bedspread with sewing construction that allows the yarn to fall in a repeated loop pattern. The additional processing of the entire bedspread results in the twisted, bullion yarn effect, which forms loose pendant cords.

The Encarta Dictionary definition for “trimming” is “1. something attached as decoration: a piece of material used as a decoration on clothing or furnishings, for example, a strip of lace, fur, or braid along the edge of a piece of clothing”. In this definition, “trimming” includes products that have not been constructed from fabric, which is exemplified by the fact that “fur” has been identified as “decorative trim” under this definition. More to the point, it is the use of the product as a decorative edging that determines whether or not it becomes an “edging” or “trimming” under these definitions.

Counsel further argues that the Tariff Schedule of the United States (TSUS), which preceded the HTSUSA, is to be used as guidance in the present ruling. The counsel for the importer asserts that HQ 049772, dated November 8, 1978, provides historical recognition that “trimming” and “edging” are generally known in the textile industry as fabrics. We disagree with this premise. Although HQ 049772 may have set forth three fabric styles (under 12 inches in width) as examples of “edgings” or “trimmings”, this does not necessarily limit or preclude other products, such as fringe, from being considered as “edgings” or “trimmings” under the HTSUSA. We also note that under the TSUS headnotes, Schedule 3, Headnote 3(a)(i), the term “ornamented” specifically included fabrics and other articles of textile material ornamented with “fibers, filaments (including tinsel wire and lame), yarns, or cordage,”.

In the instant case, the bullion yarn is a type of decorative fringe that has been attached to the bedspread to cover an unsightly edge finished with overlock stitching. Thus, the primary purpose of the bullion yarn fringe is to enhance the decorative appeal of the bedspread by hiding the overlock stitching on three of the sides. The unadorned top edge of the bedspread is not finished in an exposed overlock stitch but has a turned hem which has been sewn with a straight stitch. In fact, it is this unadorned top edge of the bedspread that receives the most wear because it has been designed to be smoothed and draped over bed pillows or to be folded over at the top of the bed. Clearly, there are many ways to finish a bedspread that would provide the necessary structural strength at the edges without requiring the application of an edging or trimming. Although the application of a bullion yarn fringe may be more costly than merely turning and sewing the hem, it does provide an enhanced decorative visual appeal to the bedspread. As such, the bullion yarn fringe satisfies the above definitions of an “edging” and a “trimming” because it is used as a decorative trim to mask a roughly finished edge.

We do not agree with counsel’s assertion that the fringe is there solely for the purpose of providing structural strength and added weight to the edges of the bedspread. We have carefully examined the bedspread and note that the relatively light weight of the fringe has little effect against the heavy drape of the fabric. Nor do we agree that attaching the fringe prior to the dyeing, drying, and finishing process is evidence of a utilitarian and non-decorative purpose by industry standards. Rather, by attaching the fringe first and dyeing/finishing the entire article, the fringe can be exactly color coordinated with the bedspread to further enhance the monochromatic color scheme and decorative appeal of the product.

In discussing the CBP rulings that have addressed the terms “edging” or “trimming” for the purposes of classification under the HTSUSA, counsel for the importer has cited to Headquarters Ruling Letter (HQ) 085617, dated March 21, 1990. In HQ 085617, CBP found that quilted bedspreads with multiple fiberfill layers and 13 inch wide dust ruffles had been erroneously classified in subheading 6304.19.1500, HTSUSA. In classifying the bedspreads in subheading 9404.90.9040, HTSUSA, it was found that the decorative effect of the stitching in the fabric above the ruffle was not minor compared to its function. As such, this ruling supports our position that the fringe on the subject bedspread is primarily decorative compared to any functional effect. Furthermore, the functionality of various decorations was discussed in HQ 955576, dated June 1, 1994, in which it was noted that “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.” In the instant case, we have already established that the bullion yarn fringe is an edging or trimming. Therefore, the mere fact that the fringe is present on the bedspread establishes a decorative purpose and functionality is not a consideration.

Counsel also cites HQ 950521, dated October 1, 1992, where CBP held that the binding material used to cover raw edges of a quilt were functional rather than decorative. Thus, CBP determined that the quilts did not have an edge, trim, or piping exceeding 6.35 mm and the quilts were properly classified in subheading 9404.90.80, HTSUSA. Of particular relevance is the fact that HQ 950521 determined that the binding material did not cover up a previously finished seam but served as an integral and necessary part of the quilt because it contained the exposed ends of the quilt’s three-ply material. In the instant case, HQ 950521 is distinguishable because the bedspread now in question has edges on three sides that have been finished with overlock stitching and are visually enhanced with the application of decorative fringe. Thus, the bullion yarn fringe merely hides an unsightly finished edge to provide a more decorative appearance and does not serve as a protective binding to completely contain fiber filling and raw edges.

Counsel for the importer has asserted that the bullion yarn fringe does not meet the definitions of “findings” and “trimmings” established in the Customs Regulations governing the qualification of various textile articles for preferential treatment under special programs. However, we note that these goods do not fall within the scope of the regulations promulgated under the Caribbean Basin Trade Partnership Act (CBTPA) or the African Growth and Opportunity Act (AGOA). The importer cites HQ 966696, dated December 3, 2003, as applicable to this merchandise. HQ 966696 addressed the issue of whether hook and loop fastener tape used on men’s denim jeans was considered a “finding” under the CBTPA. In HQ 966696, CBP set forth the legislative intent in applying the statutory language of the CBTPA by noting: “The exception for findings and trimmings was necessarily intended to be of a restrictive nature, as the intent of the statute was to ensure that all fabric components be formed and cut in the U.S. and CBTPA beneficiary countries.” In this instance, the scope of what can be considered a “trimming” under the CBTPA cannot be used as guidance in defining the terms “edging” and “trimming” for the purposes of classifying bedspreads in subheading 6304.19.0500, HTSUSA.

With respect to “finding” and “trimming” determinations under the AGOA and CBTPA, it is important to note that CBP makes these determinations on a case by case basis. Such decisions are based on CBP regulations that set forth special rules for certain component materials. In fact, these regulations specifically address the treatment of fibers and yarns as findings or trimmings when they are used as such on an article. See 19 C.F.R. Sections 10.213(b)(3) and 10.223(c)(1)(iii). This contradicts the argument set forth by the counsel for the importer that the subject yarn would not be a trimming under the AGOA and CBTPA.

In view of the foregoing, we find that the bullion yarn fringe on the subject bedspread is an “edging” or “trimming” within the meaning of subheading 6304.19.0500, HTSUSA.

HOLDING:

The subject merchandise, identified as the style IB001 “Diamonds” bedspread and the “Wedding Ring” style bedspread, are correctly classified in subheading 6304.19.0500, HTSUSA, which provides for, “Other furnishing articles, excluding those of heading 9404: Bedspreads: Other: Of cotton: Containing any embroidery, lace, braid, edging, trimming, piping or applique work.” The general column one duty rate is 12 percent ad valorem. The textile category is 362.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP 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.

The designated textile and apparel category may be subdivided into parts. If so, the 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 renegotiations and changes, to obtain the most current information available, we suggest that the importer check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the CBP Electronic Bulletin Board (CEBB), which is available now on the CBP web site at “www.customs.gov”.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), the importer should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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