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HQ H003735





January 25, 2008

CLA-2 OT:RR:CTF:TCM H003735 GC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6302.31.5010; 6302.31.5020

Customs and Border Protection
Port of Los Angeles / Long Beach
301 East Ocean Boulevard
Suite 1400
Long Beach, California 90802

RE: Protest No. 2704-05-102191; Classification of cotton pillowcases and sheets with embroidered hem

Dear Port Director:

The following is our decision regarding Protest 2704-05-102191, filed by Sidley, Austin, Brown and Wood, LLP, on behalf of its client, CMN International, LLC (CMN), concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain cotton pillowcases and sheets with an embroidered hem. In preparing this decision, consideration was given to a supplemental submission, dated April 30, 2007, provided by counsel. Consideration was also given to the substance of the meeting that took place between counsel and Customs and Border Protection (CBP) on January 4, 2008, along with the written submission by counsel following that meeting, dated January 8, 2008.

FACTS:

The sample provided by CMN is a woven 100 percent cotton sateen stripe pillowcase. The open end is folded to form an approximately four-inch wide hem. It is sewn with a single needle stitch of thread that is the same color as the fabric, and then over-sewn with a decorative satin stitch or merrow stitch. The single needle stitching holding the hem on the submitted sample is approximately eight stitches per inch, based on a visual inspection. Visual inspection of the garment also indicates that the “raw” end of the fabric is turned into the hem with the underlying stitching, meaning that it is not visible. On the rest of the pillowcase, the stitching is approximately eight or nine stitches per inch.

It should be noted that counsel for CMN has stated that the rate of stitching on the seams not over-sewn with the embroidery stitching is twelve stitches per inch. However, visual inspection of a sample taken from the protested entry conducted by the Port, the Commodity Specialist and this office resulted in the conclusion that the rate of stitching is no more than eight or nine stitches per inch. It is stated that the top hem on the flat sheet is the same as the hem on the submitted sample.

ISSUE:

Whether the subject merchandise contains “embroidery”, as contemplated by the HTSUS, in the form of the decorative stitching sewn over the hem?

LAW AND ANALYSIS:

Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on October 6, 2005, within 180 days of liquidation of the entry on July 8, 2005, pursuant to 19 U.S.C. §1514(c)(3).

Further review of Protest 2704-05-102191 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(a), the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made at any port with respect to substantially similar merchandise. Specifically, it is alleged to differ from classification decisions at two other ports on the same 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.

The HTSUS subheading implicated in this case is subheading 6302.31, HTSUS, which provides for “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen: Of cotton.” Because the pertinent comparison in this case occurs at the eighth digit provision of the HTSUS, GRI 6 is implicated. GRI 6 states:

For legal purposes, the classification of goods in the subheadings 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. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

Thus, the subheadings under consideration here are subheading 6302.31.50, HTSUS, which provides for, cotton bed linen “Containing any embroidery, lace, braid, edging, trimming, piping or appliqué work: Not napped”, and subheading 6302.31.90, HTSUS, which provides for, cotton bed linen “Other: Not napped.”

The principal issue in this case is whether or not the decorative stitching on the hem of the subject merchandise should be classified as “embroidery” as contemplated by the HTSUS. Headquarters Letter Ruling (HQ) 955576, dated June 1, 1994, articulated the definition of “embroidery.”

Before discussing the factors considered in identifying embroidery, it is worth noting the point made in HQ 955576 that just because a particular stitch is considered an embroidery stitch does not necessarily mean that its use automatically creates “embroidery.” See also United States v. Grass Brothers, 13 Ct. Cust. 33, 35, T.D. 40866 (1925) (stating, “Embroidery is made by stitching, but all stitching is not embroidery.”); Bruce Duncan, Co. v. United States, 52 Cust. Ct. 179, 182, C.D. 2458 (1964). The stitching at issue here certainly qualifies as embroidery stitching, as it is decorative and enhances the design of the subject merchandise.

HQ 955576 further notes that, “to constitute embroidery there must be by needlework processes an ornamental addition superimposed upon a previously completed fabric or article” [emphasis added]. See also United States v. Field & Co., 10 Ct. Cust. 183, 190, T.D. 38550 (1920). From the aforementioned and additional court cases, the three main factors considered in determining whether or not a stitch constitutes “embroidery” for classification purposes are: (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. With regards to the third factor, HQ 955576 notes that the function or purpose of the stitch is a fundamental aspect of the definition of embroidery developed by the relevant case law.

The function and purpose of stitching was discussed in United States v. Endicott Johnson Corp. (617 F.2d 278 (CCPA 1980)), which protestant points to as support for its argument that the merchandise at issue here is not “embroidered.” In that case, the U.S. Court of Customs and Patent Appeals upheld the Customs Court’s decision that certain imported shoes were not ornamented because the functional role of the arch stitching was “primary to any ornamentative nature.” Id. at 281. In so holding, the Court noted that “stitching that serves a significant purpose with respect to the character, construction, or manufacture of an article – such as strengthening the material, enabling the manufacturer to produce the product more efficiently or cheaper, or producing a better product – is ‘functional’ and not merely ornamental.” Id. at 282.

It should first be noted that Endicott discusses ornamentation and not embroidery, thus limiting its applicability to this case. Nevertheless, protestant essentially suggests that the embroidery stitching on the subject pillowcase and sheets is “functional” under Endicott because the embroidery stitch strengthened the hem on the articles and also prevents against puckering of the fabric. Such a reading of Endicott, however, would almost certainly require any embroidery stitching placed on top of a hem line to be considered “functional,” as it certainly would strengthen the hem or affect it in some other manner.

The issue in this case, which differs from that in Endicott, is whether the embroidery stitching completes the hem or is superimposed upon a previously completed article for purely decorative purposes. Resolution of this issue concerns whether the underlying stitch, at a frequency of eight stitches per inch, is sufficient to maintain the hem in the absence of the embroidery stitch. It is important to note that this issue does not concern whether the embroidery stitch aids in holding the hem (as any stitch would do so), but whether the embroidery stitch is necessary for completing the article. Protestant submitted the results of tests conducted by an independent tester showing that the hem with the embroidery stitching was indeed stronger (with 59 pounds of pressure tearing the fabric at the seam) than the hem with only the underlying single-seam stitching (with 25.8 pounds of pressure breaking the seam).

The Customs Form (CF) 6445 for this case states that the protestant’s position is that the stitching underlying the embroidery stitch of the subject article constitutes a basting stitch. It should be noted that while there does not appear to be a definitive industry standard for what constitutes a basting stitching, the longest available basting stitch length on most sewing machines is approximately six stitches per inch. See, Reader’s Digest Complete Guide to Sewing. In its original protest and during the January 4, 2008 meeting, counsel for protestant claimed that the underlying stitching is not necessarily a basting stitch, but a guide stitch. Regardless of whether the underlying stitching is claimed to be basting or guide stitching, the issue in this case remains whether the underlying stitching completes the hem or if the embroidery stitching is necessary to do so. A guide stitch serves the purpose, similar to that of a basting stitch, of holding the hem in place reducing the need for a person to hold the material steady during the stitching.

Determining whether the under-stitching in this case constitutes basting or guide stitching is accomplished by analyzing the function of the stitching in relation to the rest of the good. HQ 965033, dated July 16, 2002, is helpful here. In that case, which deals with the classification of pillowcases, CBP determined that an embroidery stitch superimposed on the hem was indeed necessary to complete the article because the stitch underlying the hem constituted a mere basting stitch that would not maintain the hem over the course of repeated use. The stitching underlying the embroidery stitching in HQ 965033 was at a frequency of four stitches per inch, while the stitching on the other seams was sewn at a rate of eleven stitches per inch. HQ 965033 held that the underlying stitching in that case, at a rate of four stitches per inch, was not sufficient to complete the hem. Consequently, the embroidery stitching was required to complete the article.

This particular case is distinguishable from HQ 965033. In this case, the stitch underlying the embroidery stitch on the hem is sewn at a rate of eight stitches per inch (twice the stitching in HQ 965033) while the seams not over-sewn with embroidery stitching contain nine stitches per inch. Nine stitches per inch clearly are sufficient to maintain those seams over repeated use. Protestant apparently argues that one fewer stitch per inch renders the underlying stitching insufficient to maintain the hem. This argument is tenuous at best. It is also noteworthy that the underlying stitching is of the same color thread as the rest of the fabric. The inconspicuous nature of the underlying stitching certainly would cause the operator of the machine sewing the embroidery stitching over the seam to have a difficult time tracing the underlying stitching.

To summarize, the stitching underlying the embroidery stitching is not characteristic of a basting or guide stitch. Furthermore, the rate of stitching of eight stitches per inch is sufficient to maintain the hem, making the overlying stitching embroidery. This is particularly evident in light of the fact that the stitching throughout the rest of the sample was at a rate of nine stitches per inch. This conclusion is further strengthened by the fact that the edge of the material is turned underneath the underlying stitching, meaning that there was no visible edge to fray. This indicates that the hem was indeed complete prior to the application of the embroidery stitch. Thus, the embroidery stitching on the hem of the subject merchandise constitutes embroidery as contemplated by the HTSUS and defined in HQ 955576.

HOLDING:

By application of GRI 1, the 100 percent cotton pillowcase and sheet are respectively classified in heading 6302, HTSUS, as bed linen. The pillowcase is specifically provided for in subheading 6302.31.5010, 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 appliqué work: Not napped: Pillowcases, other than bolster cases.” The sheet is specifically provided for 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 appliqué work: Not napped: Sheets.” The general column one rate of duty at the time of entry was 20.9 percent ad valorem. Merchandise classifiable in subheadings 6302.31.5010, HTSUSA, falls within textile category 360. Merchandise classifiable in subheading 6302.31.5020, HTSUSA, falls within textile category 361.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together 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 Regulations and Rulings of 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

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