OT:RR:CTF:FTM H301424 TJS

Mr. W.J. Gonzalez
General Manager
Trans-Union Customs Service, Inc.
11941 S. Prairie Avenue
Hawthorne, CA 90250

RE: Modification of NY B85277, NY 801210, and NY 889565; Revocation of NY 800463 and NY 881559; Classification of Embroidered Motifs Imported in Continuous Lengths

Dear Mr. Gonzalez,

This is to inform you that U.S. Customs and Border Protection ("CBP") has reconsidered New York Ruling Letter ("NY") B85277, issued to you on May 13, 1997 and NY 800463, issued to you on July 24, 1994, in addition to NY 801210, dated August 22, 1994, NY 889565, dated August 26, 1993; and NY 881559, dated January 6, 1993, regarding the tariff classification of certain embroidered motifs under the Harmonized Tariff Schedule of the United States ("HTSUS"). In those rulings, CBP classified certain embroidered motifs under subheading 5810.92.0040, HTSUS, or its current successor provision 5810.92.1000, HTSUS, which provides for "Embroidery in the piece, in strips or in motifs: Other embroidery: Of man-made fibers: Badges, emblems and motifs." We have determined that NY B85277, NY 801210, and NY 889565 are partially incorrect, and NY 800463 and NY 881559 are incorrect. For the reasons set forth below, we hereby modify NY B85277, NY 801210, and NY 889565, and revoke NY 800463 and NY 881559.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Vol. 53, No. 48, on January 2, 2020. No comments were received in response to the proposed action.

FACTS:

The subject merchandise consists of various styles of embroidered motifs imported in continuous lengths. NY B85277 addressed the classification of three samples of motifs used for decorating dresses, but only one is at issue here. Sample St-7777 consisted of glass beads and sequins stitched to a backing of man-made fiber. The item was to be imported in continuous lengths, but could be easily cut apart into individual pieces of approximately one inch by one inch separate articles that could stand alone as individual appliqus.

NY 801210 classified five samples of decorative textile items, but only one style is at issue here. Style # AS/JC 1006 was beaded motifs made with imitation pearls and sequins sewn onto a sheer woven ground fabric assumed to be of man-made fibers. They consisted of star-shaped motifs with two inch long dangling beads. These motifs were imported by the yard for the convenience of transportation and could be easily cut apart.

NY 889565 classified four styles of fully beaded embroidered motifs imported in strip form and one style of beaded fringe. At issue here was the classification of the embroidered motifs, items BT-501, WT-235, WT-222 and WT-227. BT-501 was a gold-colored ornament trim with beads and sequins, measuring approximately 3 inches by 2 inches. WT-235 was a black leaf-shaped motif measuring two inches by two inches. WT-222 was a bow tie-shaped motif with dangling plastic imitation pearl beads. WT-227 was a cluster motif with various sizes of imitation plastic pearls sewn onto the ground fabric or dangling. These four motifs had beads embroidered to their sheer plain woven ground fabrics, which were continuous strips attaching the motifs for the convenience of transportation and to facilitate attachment. The ground fabrics, which were assumed to be of man-made fibers, could be cut without damaging the appliqus.

NY 800463 concerned fully beaded embroidered motifs imported in strip form in ten yard lengths. The motifs had imitation plastic pearls and white beads sewn onto their sheer plain woven ground fabric, which was a continuous strip attaching the motifs for the convenience of transportation and to facilitate attachment. The ground fabric, which was assumed to be of man-made fibers, could be cut without damaging the appliqus. The motifs could be cut apart in groups of two leaf-shapes, measuring approximately five inches by two inches, and sold separately.

NY 881559 concerned two fully beaded motifs, Item Nos. 4648 and 5603. Both motifs had nylon woven ground fabrics. Item No. 4648 was a leaf-shaped motif with green plastic sequins and measured two inches by two inches. Item No. 5603 was a circular-shaped beaded appliqu measuring one inch in diameter, and had a large imitation gemstone surrounded by smaller plastic beads. The provided samples were embroidered motifs in continuous strips. The strips of embroidery consisted of a series of motifs connected by small sections of ground fabrics between each motif to form the strips. After importation, the motifs were to be cut and appliqud to dresses, gowns, etc., in order to enhance the appearance of the garment.

NY B85277, NY 801210, NY 889565, NY 800463, and NY 881559 classified the subject embroidered motifs under subheading 5810.92.0040, HTSUS, or its successor provision 5810.92.1000, HTSUS, which provides for "Embroidery in the piece, in strips or in motifs: Other embroidery: Of man-made fibers: Badges, emblems and motifs."

ISSUE:

Whether the embroidered motifs imported in strips are classified in subheading 5810.92.1000, HTSUS, as embroidery in the form of motifs, or 5810.92.90, HTSUS, as embroidery in the piece.

LAW AND ANALYSIS:

Classification under the HTSUS 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.

The HTSUS provisions under consideration are as follows:

5810.92: Embroidery in the piece, in strips or in motifs: Other embroidery: Of man-made fibers:

5810.92.10: Badges, emblems and motifs. . .

5810.92.90: Other. . .

* * * *

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 (Aug. 23, 1989).

EN 58.10 provides, in relevant part:

(III) APPLIQUE WORK This consists of a ground of textile fabric or felt on which are sewn, by embroidery or ordinary stitches: (A) Beads, sequins or similar ornamental accessories; these accessories are generally made of glass, gelatin, metal or wood, and are sewn so as to produce a pattern or a scattered design on the ground fabric. (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. 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 appliqud 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.

* * * *

NY B85277, NY 801210, NY 889565, NY 800463, and NY 881559 classified the embroidered motifs under the provision for "badges, emblems and motifs," noting that the strips of motifs could be cut apart and sold or used individually. We find this classification to be incorrect, especially in light of the descriptions set forth above in the Explanatory Notes.

The classification of the subject embroidered motifs will depend on their condition upon importation, i.e., whether they are imported individually or in the piece. We note that although the subject merchandise is referred to as "motifs," a "motif" is merely "a single or repeated design or color." Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/motif (last accessed Oct. 9, 2019). The subject merchandise consists of motifs, but it must be determined whether they are "in the form of motifs" for tariff classification purposes. EN 58.10 distinguishes embroidery "in the piece or in strips of various widths" from embroidery "in the form of motifs." Embroidery is "in the form of motifs" if it is imported as individual pieces and its sole purpose is to be incorporated or appliqud as elements of embroidery. See, e.g., Headquarter Ruling Letter ("HQ") 957317 (Mar. 10, 1995) (classifying embroidered motifs in subheading 5810.92.10, HTSUS, as "in the form of motifs" because they were no longer "in the piece" once cut to irregular shapes to accommodate embroidered designs and to enable a dress designer to use those designs to his/her needs.) Subsequent separation into individual pieces after importation does not preclude the embroidery from being considered in the piece. Therefore, the fact that the subject embroidered motifs could be easily cut apart into individual pieces, and may be intended to do so, does not make them eligible for classification as an individual motif. The subject embroidered motifs fall within the scope of "in the piece or in strips of various widths" under EN 58.10 because they are imported in continuous strips or by the yard and bear a series of identical designs.

This is consistent with the rule set forth in United States v. Buss & Co., 5 Ct. Cust. 110 (1914). Buss addressed the classification of woven cotton tape imported in continuous lengths that bore cross marks at short intervals indicating where to cut the tape into small pieces for use as coat hangers. Id. In Buss, the United States Court of Customs Appeals held that:

The rule expressed by the decisions just cited recognizes the fact that most small articles are not produced as individual or separate products of the loom, but for economy of manufacture are first woven "in the piece." The rule of decision is therefore established that where such articles are imported in the piece and nothing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity. This follows, however, only in case the character or identity of the individual articles is fixed with certainty and in case the woven piece in its entirety is not commercially capable of any other use.

Id. at 113. Thus, a product imported in the piece is classified as an individual article if it has the defined identity of the individual article and must be separated to be commercially usable.

Here, the embroidered motifs are not classifiable as individual motifs if, at the time of importation, they are commercially suitable for use as strips. In other words, the identity of the good is not fixed with certainty as a motif. Although the subject embroidered motifs can be separated without damage and used as individual appliqus, they are also usable as strips, such as for trimming. This variation provides the user a flexibility of design in a range of applications. Additionally, the embroidered strips provide the ease of fixed spacing if the user desires to position the motifs at regular intervals. The motifs are used for embellishment regardless of form, but the length of the embellishment is not fixed with certainty and they are not dedicated for use solely as individual appliqus or as strips. By being imported in continuous lengths or by the yard, the user can apply the motifs in the form they desire, whether that be as individual appliqus or as strips of various lengths. Because the embroidered motifs do not need to be separated to be commercially capable of use, we find that the subject embroidered motifs are not classifiable according to their individual character.

In accordance with the above, the subject embroidered motifs are classified as "in the piece or in strips of various widths." Embroidery, of man-made fibers, that is imported in continuous lengths is classified under subheading 5810.92.90, HTSUS. See, e.g., NY N260125 (Jan. 6, 2015); NY N137843 (Jan. 13, 2011); and NY G86149 (Jan. 19, 2001) (classifying a floral motif imported in continuous lengths to be used as trimming). Thus, the subject embroidered motifs are classified in subheading 5810.92.90, HTSUS.

Goods classified in this provision are dutiable according to the terms of Additional U.S. Note 3 to Chapter 58, which states that the general rate of duty applicable to goods classified in subheading 5810.92.90, HTSUS, is "7.4%, but in the case of embroidery in the piece not less than the rate which would apply to such product if not embroidered."[1] Therefore, the rate of duty for the subject embroidered motifs is based on the classification of their respective ground fabric. NY B85277, NY 801210, NY 889565, NY 800463, and NY 881559 state that the ground fabrics of the subject embroidered motifs are, or are assumed to be, made of man-made fabric. The rulings do not provide enough information to determine the duty rate applicable to the ground fabrics. Without this additional information regarding the ground fabric in these rulings, we are unable to determine the applicable duty rate for the subject embroidered motifs.

HOLDING:

By application of GRIs 1 and 6, the subject embroidered motifs are classified under subheading 5810.92.90, HTSUS, which provides for "Embroidery in the piece, in strips or in motifs: Other embroidery: Of man-made fibers: Other." We cannot assess the applicable duty rate because we do not know the ground fabric of the embroidered motifs.

EFFECT ON OTHER RULINGS:

NY B85277, dated May 13, 1997, NY 801210, dated August 22, 1994, and NY 889565, dated August 26, 1993, are hereby MODIFIED.

NY 800463, dated July 24, 1994, and NY 881559, are hereby REVOKED.

In accordance with 19 U.S.C. 1625(c), these rulings will become effective 60 days after their publication in the Customs Bulletin.

Sincerely,

Craig T. Clark, Director
Commercial and Trade Facilitation Division


-----------------------
[1] According to Additional U.S. Note 2 to Chapter 58, the column 1 rate of duty applicable to subheading 5810.92.10, HTSUS, is "4.2%, but in the case of embroidery in the piece not less than the rate which would apply to such product if not embroidered." We understand that as a result of this ruling, embroidery in the piece shall not be classified in subheading 5810.92.10, HTSUS, effectively nullifying the language of Additional U.S. Note 2 to Chapter 58 applicable to embroidery in the piece. However, all embroidery classified in heading 5810, HTSUS, with the exception of subheading 5810.10.00, HTSUS, that is imported in the piece is dutiable at a rate not less than the rate which would apply to such product if not embroidered. See Additional U.S. Notes 1-5 to Chapter 58, HTSUS. Prior to 1994, only one Additional U.S. Note to Chapter 58 existed, which encompassed subheadings 5810.91, 5810.92, and 5810.99, HTSUS, and provided a single duty rate for individual pieces of embroidery and the current duty rate language for embroidery in the piece. The embroidered motifs in NY B85277, NY 801210, NY 889565, NY 800463, and NY 881559 were assessed at the individual rate.