CLA-2 CO:R:C:T 953174 jb
Andras Bende
Bende & Sons
180 Autumn Street
Passaic, New Jersey 07055
RE: Request for Reconsideration of NY 878821; embroidered
crests; small crest placed on large piece of material;
identity of merchandise is not as a motif but as an
embroidery in the piece; proper classification remains in
subheading 5810.99.0010, HTSUSA
Dear Mr. Bende:
This is in regard to your letter, dated November 25, 1992,
requesting reconsideration of New York Ruling Letter (NY) 878221,
dated October 14, 1992, classifying an embroidered crest. A
sample was submitted to this office for examination.
FACTS:
The subject sample, measuring 2-1/2 inches by 2 inches, is a
hand-embroidered crest made from metallic bullion with small
portions of red, green and black yarn or fabric, and on which the
word "Classic" appears. Around the crest portion, the sample has
an excess of cut rectangular woven 100 percent wool visible
ground fabric measuring 7-1/2 by 6 inches.
You state that the wool ground fabric is manufactured in the
United States and that the embroidery labor and materials are
furnished in Pakistan by the embroiderer. You add that this
fabric is cut to the rectangular shape prior to exportation from
the United States and that no further cutting is performed in
Pakistan.
Our New York office issued you NY 878821, classifying the
merchandise in subheading 5810.99.0010, HTSUSA, which provides
for embroidery in the piece. You disagree with this
classification and instead propose that it meets the requirements
of an embroidery motif, qualifying for lower duty.
ISSUE:
Whether this merchandise qualifies as embroidery "in the
piece" or as embroidery "in motif" ?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order. GRI 1 requires that classification be determined
according to the terms of the headings and any relative section
or chapter notes, taken in order. Where goods cannot be
classified solely on the basis of GRI 1, the remaining GRI will
be applied, in the order of their appearance.
Heading 5810, HTSUSA, provides for embroidery in the piece,
in strips or in motifs. The Explanatory Notes to heading 5810,
HTSUSA, state in pertinent part:
(III) APPLIQUE WORK
This consists of a ground fabric of textile fabric or
felt on which are sewn, by embroidery or ordinary
stitches:
(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.
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 appliqued 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.
In support of your claim that the merchandise is in fact a
motif, in your letter you contend that "the imported item is a
motif consisting solely of the hand embroidered gold bullion and
color thread design, without the background material". In fact,
the good as imported is a rectangular piece of ground fabric onto
which a design has been embroidered. As such, it does not
consist solely of a motif.
The terms of the EN to heading 5810, HTSUSA, are clear in
their definition of "motif", i.e., "serving no other function
than to be incorporated or appliqued as elements of
embroidery..." In the case of the subject sample the crest is
not the only factor for consideration; the ground fabric must
also be considered. The latter creates potential for a variety
of uses.
In its imported condition, the identity of the good is not
fixed with certainty as a motif. The embroidered crest measuring
approximately 2-1/2 inches by 2 inches is comparatively smaller
than the 7-1/2 inches by 6 inches piece of material serving as
the ground fabric. Due to this discrepancy in the crest to
ground fabric ratio, it is easy to surmise that the piece of
material may later be cut and used in many different ways. As
you state yourself in your letter, the imported article is later
transformed into a blazer/jacket pocket. However, because at
this point the merchandise is neither clearly dedicated to use as
a pocket nor has the essential character of a pocket, your
suggested alternative classification for the merchandise as an
unfinished component must also be rejected.
Additional U.S. Note 1 to chapter 58 states in pertinent
part:
The rates of duty applicable to subheadings 5810.91, 5810.92
and 5810.99 are: column 1 (General), 8.4%, but in the case
of embroidery in the piece not less than the rate which
would apply to such product if not embroidered...
Accordingly, because the good has not lost its identity as
fabric in the piece, our New York office was correct in applying
Additional U.S. Note 1 to chapter 58 and determining that the
sample is not a "motif" but rather an embroidery "in the piece",
with a duty rate applicable to the ground fabric if not
embroidered.
As noted, the wool ground fabric is manufactured and cut in
the United States. Embroidery is considered to be an acceptable
assembly process under subheading 9802.00.8060, HTSUSA, which
provides for articles assembled abroad, if the requirements of
the Customs Regulations are met. Though an allowance will be
made for the value of the supplied American made wool fabric if
it is returned to the United States in the same sizes as sent,
no allowances will be made for the Pakistani made bullion or
thread when imported into the United States.
HOLDING:
The subject sample was correctly classified in subheading
5810.99.0010, HTSUSA, which provides for embroidery in the piece,
in strips, or in motifs, other embroidery, of other textile
materials, of wool or fine animal hair. The rate of duty is 36.1
percent ad valorem, based on Additional U.S. Note 1 to chapter
58, HTSUSA, using the rate applicable to the wool ground fabric
under either subheading 5112.11.2060, HTSUSA, or subheading
5112.19.9040, HTSUSA. Subheadings 5112.11 and 5112.19, HTSUSA,
provide for woven fabrics of combed wool, of a weight not
exceeding 200 g/sq. meter. Goods of subheading 5810.99.0010,
HTSUSA fall within textile category 414.
The designated textile and apparel category may be
subdivided into parts. If so, 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 negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report on Current Import Quotas (Restraint
Levels), and issuance of the U.S. Customs Service which is
updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) categories,
your client should contact the local Customs Office prior to
importing the merchandise to determine the current status of any
import restraints or requirements.
Sincerely,
John Durant, Director