CLA-2 OT:RR:CTF:TCM H089808 JPJ
TARIFF NO: 5209.51.6090
Ms. Elise Shibles
Sandler, Travis & Rosenberg, P.A.
Attorneys at Law
505 Sansome Street, Suite 1475
San Francisco, CA 94111
RE: Reconsideration of NY N044696; Classification of printed fabric; Christmas stocking needlepoint canvases
Dear Ms. Shibles:
This is in response to your letter, on behalf of your client ST Design, Inc., dated December 16, 2009, in which you requested reconsideration of New York Ruling Letter (NY) N044696, dated December 19, 2008, which classified a printed fabric in subheading 5209.51.6090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for “Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m², printed, other, plain weave duck.” A sample has been provided and will be returned. A teleconference was held with a member of my staff on December 3, 2014. Our response follows.
FACTS:
The merchandise was described in NY N044696 as follows:
The submitted sample is a plain printed woven fabric. It is composed of 100% cotton. The fabric weighs over 200 g/m² and will be imported in sizes ranging from 4”x4” to 36”x54” inch widths. The fabric is hand painted with a holiday motif. The fabric will be used as needlepoint canvases.
ISSUE:
Whether the printed fabric is properly classified under heading 5209, HTSUS, heading 6307, HTSUS, or heading 9505, HTSUS.
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 headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS headings under consideration are as follows:
5209 Woven fabrics of cotton, containing 85% or more by weight of cotton, weighing more than 200 g/m².
6307 Other made up articles, including dress patterns.
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.
Note 1(t) to Section XI, HTSUS, states as follows:
1. This Section does not cover:
(t) Articles of Chapter 95 (for example, toys, games, sports requisites and nets);
Note 7 to Section XI, HTSUS, which discusses made up textile articles states, in relevant part, as follows: For the purposes of this Section, the expression "made up" means: (a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
(c) Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this Note, but excluding fabrics the cut edges of which have been prevented from unravelling by hot cutting or by other simple means;
(d) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means;
(e) Cut to size and having undergone a process of drawn thread work;
(f) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded);
(g) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Note 1 to Chapter 63 states as follows:
1. Sub-Chapter I applies only to made up articles, of any textile fabric.
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 EN’s 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. 35127-28 (Aug. 23, 1989).
The ENs 95.05, provide, in relevant part:
This heading covers: (A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include: (1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases. * * *
Importer acknowledges that CBP has classified needlepoint canvases in heading 5209, HTSUS, and cites HQ 959184, dated November 13, 1996. See also NY H83471, dated July 23, 2001; HQ 953931, dated September 29, 1993; and HQ W968157, dated September 25, 2008. However, in this case, Importer argues that their merchandise is unlike the needlepoint canvases described in these rulings, because the merchandise at issue can not be described as “general purpose needlepoint canvases”, but instead are described as festive articles.
Specifically, Importer argues that the Christmas stocking needlepoint canvases are closesly associated with Christmas and are displayed by the consumer only during Christmas. In support of this argument, Importer characterizes the needlepoint canvases as “unfinished Christmas stockings or parts of Christmas stockings”, and cites HQ 957233, dated January 30, 1995, NY C88539, dated June 16, 1998, NY 888362 dated August 11, 1993, NY C86359 dated May 6, 1998. Importer argues that the Christmas stocking needlepoint canvases at issue are Christmas stockings imported in an unfinished state, and that the end use can only be as a decorative item for Christmas, emphasizing that “there is nothing else that could be made” from these Christmas stocking needlepoint canvases. In fact, Importer explains that needlepoint canvases are “the fundamental building block for the finished product”, and that the canvases are incorporated “into the finished product and form a significant portion of the finished product”. Importer concludes that the “canvas and pattern are an essential part of the finished stocking”. Finally, Importer notes that Christmas stockings need not contain designs traditionally recognized as representing Christmas, and cites NY J80353, dated January 27, 2003; NY J85455, dated June 17, 2003; and NY J84664, dated May 16, 2003.
Pursuant to Note 1(t) to Section XI, HTSUS, if the merchandise is an article of Chapter 95, HTSUS, it is excluded from Section XI, HTSUS. Section XI, HTSUS, includes chapters 50-63, HTSUS.
In US v Citroen, the Court stated “in order to produce uniformity in the imposition of duties, the dutiable classification of articles must be ascertained by an examination of the imported article itself, in the condition as imported.” 223 US 407, 414-415, 32 S Ct 259, 56 L.Ed. 486 (1911). Merchandise is classified in the condition as imported. The Christmas stocking is an article traditionally used at Christmas festivities. See EN 95.05. However, the subject merchandise, in the condition as imported, are printed needlepoint canvases, not Christmas stockings or unfinished Christmas stockings. Unlike stockings and unfinished stockings, the needlepoint canvases have no backing, lining, seams, arch, instep, or hanging loop. As such, HQ 957233, NY C88539, NY 888362, and NY C86359, which classified “stockings” and “mittens” for hanging on a Christmas tree are not instructive on the classification of needlepoint canvases.
Merchandise is classifiable in heading 9505, HTSUS, as a festive article if the article satisfies two criteria: (1) it must be closely associated with a festive occasion and (2) it must be used or displayed principally during that festive occasion. Additionally, the article must be "closely associated with a festive occasion" to the degree that "the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant." Michael Simon Design, Inc. v. United States, 452 F. Supp 2d. 1316 (Ct. Int’l Trade 2006), aff’d 501 F. 3d 1303 (Fed. Cir. 2007) reh’g denied (Fed. Cir. April 2, 2008) (citing Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) (citing Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997))).
Applying the Michael Simon two-part test, we find that the merchandise is not closely associated with a festive occasion. The needlepoint canvases are not so intrinsically linked to a festive occasion that their use during other times periods would be aberrant. From our internet research at www.needlepointshop.com, www.stitchtherapyneedlepoint.com, www.artneedlepoint.com, www.needlepointUS.com, www.silverneedlect.com, and www.needlepoint.com, needlepoint Christmas stocking canvases, and other holiday stocking canvases, are available and advertised, marketed, and sold throughout the year. This confirms that needlepoint is an activity that can be conducted all year long, and that the Christmas stocking needlepoint canvases, yarns, needles, and other materials necessary for this activity are sold in hobby, craft, and specialty stores throughout the year. This is unlike the merchandise in Park B. Smith and Midwest, which was found to be designed, marketed and used by consumers in conjunction with a festive occasion. See Midwest, 122 F.3d at 1429. Importer provides no evidence that these items are sold prior to a particular holiday for which they are associated, or that they are sold during the Christmas or any other holiday season.
Regarding the second prong of the two-part test, needlepoint canvases are not used or displayed principally during Christmas, or any other festive occasion. Needlepoint canvases are not displayed, and from our internet research supra, needlepoint canvases are not used principally during a festive occasion. Therefore, the merchandise fails both prongs of the two-part test. We find support for our conclusion in Wilton Industries, Inc. v. United States, 493 F. Supp. 2d 1294 (Ct. Intl. Trade 2007), where the Court addressed “sewing patterns used to make Christmas stockings” and the two-part test. Therein, the Court stated:
Patterns used to make Christmas stockings are fundamentally different from festive-themed pans used to make Christmas baked goods, in several respects. Perhaps most significantly, sewing patterns can be used to make Christmas stockings year-round. While it would be aberrant to hang Christmas stockings on the mantle other than at Christmas time, it would not be aberrant to sew such stockings at other times of the year, in anticipation of (and in preparation for) the Christmas season. Thus, it would not be aberrant to use patterns for Christmas stocking year-round. See generally Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 (Fed.Cir.2003) (article is classifiable under heading 9505 only if its use at times other than festive occasion would be "aberrant").
We believe that the Court’s logic regarding patterns used to sew Christmas stockings also applies to needlepoint canvases used to make Christmas stockings. Importer argues that a “pattern” is unlike a “needlepoint canvas” because a pattern is discarded while a needlepoint canvas becomes incorporated into the finished Christmas stocking. However, Importer’s argument assumes that patterns will be discarded. Patterns may be cut, assembled, and sewn. Therefore, Petitioner’s argument is not persuasive. The merchandise is not a festive article of heading 9505, HTSUS. As such, it is not excluded by Note 1(t) to Section XI.
Alternatively, the importer argues that the needlepoint canvases are “other made up articles” of heading 6307, HTSUS, and cites HQ 083063, dated November 8, 1989, which classified a teddy bear cloth pattern in subheading 6307.90.9050, HTSUS. In HQ 083063, the merchandise was described, in relevant part, as follows:
The sample consists of a muslin cloth, rectangular in shape, measuring approximately 24 inches by 18 inches. The cloth is imprinted with the front and rear images of a teddy bear and directions for cutting and assembly. The pattern is designed to be cut, sewn and stuffed. It will be approximately fourteen and a half inches in height when completed.
Importer argues that the merchandise at issue is similar to the teddy bear cloth pattern in that in both cases, the fabric is printed with the pattern of the design and will be incorporated into the finished good. However, Importer’s reliance on HQ 083063 and its conclusion that the merchandise meets Note 7 to Section XI is misplaced because HQ 083063 has been revoked by operation of law.
Classification in heading 6307, HTSUS, is precluded by Note 1 to Chapter 63 which limits Subchapter I to Chapter 63 only to made up articles of any textile fabric. Since the needlepoint canvases are not considered “made up” within the meaning of Note 7 to Section XI, in that they are rectangular, need sewing, have a cut edge, and are not knitted, they are excluded from heading 63.07.
Heading 5209, HTSUS, is the provision for woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m². The subject article is a woven printed 100 percent cotton canvas which weighs more than 200 g/m², thus, it meets all of the requirements of the cited heading text. Therefore, the merchandise is classified in heading 5209, HTSUS. As noted supra, this decision is consistent with CBP precedent classifying needlepoint canvases in heading 5209, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the printed fabric is classified in heading 5209, HTSUS. It is specifically classified under subheading 5209.51.6090, HTSUSA, the provision for “Woven fabrics of cotton, containing 85 percent or more by weight of cotton, weighing more than 200 g/m², Printed, Plain weave: Other, Plain weave duck.”
The general, column one, rate of duty is 8.4% ad valorem. The textile category is 219.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usits.gov/tata/hts/.
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 quota categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, we suggest your client check the Textile Status Report for Absolute Quotas at www.cbp.gov close to the time of shipment to obtain the most current information available.
EFFECT ON OTHER RULINGS:
NY N044696, dated December 19, 2008, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division