CLA-2 RR:CR:TE 963784 mbg
TARIFF NO: 6304.92.0000; 6302.31.5020; 6302.31.5050; 6302.21.9020;
Port of New York
C/o Chief, Residual, Liquidation & Protest Branch
6 World Trade Center
New York, NY 10048-0945
RE: Decision on Application for Further Review of Protest No. 1001-99-105990; classification of bed linen
This is a decision on application for further review of protest number, 1001-99-105990 timely filed by Grunfeld, Desiderio, Lebowitz & Silverman, LLP, on behalf of Pratesi Linens Inc., against your decision regarding the classification of certain styles of bed linen. The entry at issue was liquidated on September 10, 1999.
The merchandise at issue consists of five styles of bed linen, made of 100 percent cotton: Although Customs has only reviewed samples of the pillow shams for the five styles of bed linen, the Protestant states that the shams possess the identical design properties as the bed sheets and duvet covers which are also represented by each of the style numbers. It is our understanding that with respect to the instant sample pillow shams, they are bought, sold and used as pillow shams and not as pillowcases.
We note that all of the items are invoiced separately and assume for the purposes of this ruling, that these items are not packed together for retail sale.
Style 102 consists of a 100 percent printed cotton fabric pillow sham whose edges are finished with an embroidered (satin stitch) scalloped edge. The stitch forming the pocket for the pillow appears to be formed by two stitches. There is a single row of stitching forming the seam and a decorative hemstitch is superimposed over this seam.
Style U61 consists of a 100 percent non-printed cotton fabric pillow sham that features an appliqued design on the front and an embroidered “Pratesi” logo on the back. This sham, similar to Style 102, has a decorative hemstitch superimposed over a finished seam
Style OQ1 consists of a 100 percent non-printed cotton fabric pillow sham that features an embroidered “Pratesi” logo on the back. This style features a more defined hemstitch over a finished seam.
Style OW5 consists of a small 100 percent non-printed cotton fabric pillow sham that features an embroidered “Pratesi” logo on the back and an embroidered satin stitch scalloped edge similar to Style 102.
Style U10 consists of a fitted sheet with an embroidered “Pratesi” logo on the side near one corner of the sheet.
The Protestant makes the following claims:
1. all styles invoiced as “pillowcases” are actually pillow shams and should be classified accordingly;
2.some of the bed linens which were classified as “printed” are not printed and should be classified accordingly;
3.style 102 is a printed bed linen that contains decorative embroidery and should be classified in subheading 6302.21.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), in the provision for other printed bed linen of cotton containing embroidery.
Protestant filed an Application for Further Review with Customs to protest Customs classification of the subject merchandise as under the terms of the HTSUSA. Review of Protestant’s Application for Further Review was granted pursuant to 19 C.F.R. § 174.24(c), which authorizes this office to review protests which were previously ruled on by Customs but in which a legal argument was not considered at the time of the original ruling. The subject protest involves the classification of bed linen with embroidery on the hemstitch and warranted further review in light of arguments concerning Customs prior classification of such merchandise under the HTSUSA. However, we note the existence of a precedential ruling, HQ 955576, dated June 1, 1994, in which a similar embroidery issue was discussed in detail. In light of the amount of time that has passed since this protest was filed, Headquarters is responding to this Application for Further Review but the port is directed to respond to such similar protest(s) in the future.
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.
Chapter 63, HTSUS, provides for, among other things, bed linen and other furnishing articles. It has been Customs position that pillow shams are used as a means of decoration either on a pillow separate from the one used during sleep, or that the sham is removed at bedtime revealing a pillowcase covered pillow. Examination of the subject merchandise reveals that the items have overlapping flaps and flanged edges. Accordingly, based on these decorative design features, we agree with the Protestant’s claim that the styles invoiced as “pillowcases” are actually pillow shams and are classified under subheading 6304.92.0000, HTSUSA, as other furnishing articles, of cotton. See e.g., HQ 951903, dated August 21, 1992, and HQ 953505, dated April 1, 1993.
Similarly, with respect to whether or not the subject bed linens consist of a “printed” fabric, upon examination of the merchandise at issue, it is clear that only style 102 features a printed fabric. The duvet covers for styles U61, OQ1, and OW5 are not printed and contain an applique or an embroidered “Pratesi” logo. These styles are properly classified under subheading 6302.31.5050, HTSUSA, in the provision for other bed linen of cotton, containing embroidery or applique work. The bed sheets for styles U61, OQ1, OW5 and U10 have an embroidered “Pratesi” logo while style U61 has an applique. We agree with the Protestant that these items should be classified under subheading 6302.31.5020, HTSUSA, in the provision for sheets of cotton, containing embroidery or applique work. We note that although the sham for style U61 has an embroidered logo and applique, the bed sheets for this style only feature an applique.
The remaining issue is with respect to whether or not style 102 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 pillow shams 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.
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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. While we agree that in some cases, an argument may be made in regard to the functionality of the embroidery, as in the aforementioned cases, we disagree that this is the case with style number 102. We find that the buttonhole stitch scalloped edge and the hemstitching, although ornamental, are not ”embroidery” since they finish the edge or create the seam. That being the case, the stitching is not decorative but functional. As such, the bed sheets and duvet cover of Style 102 are considered not to contain embroidery and classified in subheading 6302.21.9020, HTSUSA, and 6302.21.9050, HTSUSA, respectively. On the other hand the pillow sham of Style 102, is classified in heading 6304, HTSUS, as an other furnishing article (in this provision the question of “embroidery” is not an issue).
The protest should be granted in part and denied in part, according to the classifications given below.
The pillow shams for referenced styles 102, U61, OQ1, OW5 and U10, 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 bed sheets for styles U61, OQ1, OW5 and U10 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 duvet covers for styles U61, OQ1, and OW5 are classified subheading 6302.31.5050, 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: Other.” The applicable general column one rate of duty is 22.1 percent ad valorem and the quota category is 362.
The bed sheets for style 102 are classified under subheading 6302.21.9020, HTSUSA, which provides for “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen, printed: 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 duvet cover for style 102 is classified under subheading 6302.21.9050, HTSUSA, which provides for “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen, printed: Of cotton: other: Not napped: Other.” The applicable general column one rate of duty is 7.1 percent ad valorem and the quota category is 362.
As the subject merchandise is a product of Italy it is dutiable at a tariff rate of 100 percent duty pursuant to subheading 9903.08.13, HTSUSA.
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.
John Durant, Director
Commercial Rulings Division