CLA-2 CO:R:C:T 955576 CMR
TARIFF NO: 6302.21.2040, 6302.31.2040
Mr. William Green
District Director of Customs
U.S. Customs Service
Dulles International Airport
P.O. Box 17423
Washington, D.C. 20041
RE: Internal Advice Request 84/93; Classification of sheets
with edge stitching; satin stitch; Bourdon stitch; Picot
stitch; embroidery; edging; applique work; HRL 953296 of
April 26, 1993
Dear Mr. Green:
This ruling is in response to an Internal Advice Request
filed by Ross & Hardies, on behalf of their client, XXXXXX
XXXXXX. The request involves the proper classification of
certain bed sheets and whether particular stitches utilized in
making the sheets require that they be classified as bed linens,
containing any embroidery, lace, braid, edging, trimming, piping
or applique work.
FACTS:
Three styles of sheets, printed and not printed, are at
issue. Each is finished with a different type of stitch. In
describing each style of sheet and the stitch utilized in
finishing each sheet, counsel for the importer describes the
stitches which are at issue as simple single thread machine
stitches which are an integral part of each sheet and required
for their completion.
The first style of sheet has a scalloped edge which is
finished with a type of zigzag stitching commonly referred to as
a satin stitch. The stitching finishes the raw top end of the
sheet.
The second style of sheet is finished with a "bourdon
stitch." The stitch is used in hemming the top end of the sheet.
The stitch appears to be a type of zigzag stitch. -2-
The third style of sheet is finished with a picot stitch.
The stitch is used in hemming the top end of the sheet. The
stitch creates small holes in the fabric along the stitching
line.
ISSUE:
What is embroidery and are the sheets at issue classifiable
as "containing any embroidery"?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
It is agreed that the goods at issue, cotton bed sheets, are
classifiable under subheading 6302.21, HTSUSA, as other bed linen
of cotton (if printed), or under subheading 6302.31, HTSUSA, as
other bed linen of cotton (if not printed). The issue arises at
the eight digit classification level and involves the following
language [appearing at subheadings 6302.21.10, HTSUSA and
6302.31.10, HTSUSA]:
Containing any embroidery, lace, braid, edging, trimming,
piping or applique work.
In order to decide if the bed sheets at issue are
classifiable as containing any embroidery, we must determine if
the stitches which are used to finish the sheets are considered
embroidery.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (hereinafter EN) offer some
assistance, however as noted in HRL 950521 of October 1, 1992,
[referring to the same language; but as it appeared in a
different heading (9404.90.80, HTSUSA) and as part of the
phrase--not containing any embroidery,....] "[t]he term
'embroidery, lace, braid, edging, trimming or piping exceeding
6.35mm' is not defined in the HTSUS or the Explanatory Notes...."
It is relevant to note that this ruling also stated:
If an article contains any of these features, without regard
to their functionality, it is excluded from classification
within this tariff provision. [emphasis added]
In this case, we are only concerned with embroidery. The
information we can discern from the EN appears in the EN for -3-
heading 5810, HTSUSA, which provides for embroidery in the piece,
in strips or in motifs. In discussing embroidery in general, 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 that 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. [emphasis
added].
* * *
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.
The EN go on to discuss three groups of embroidery. With regard
to embroidery with the ground retained after embroidery, the EN
state, in relevant part:
This is embroidery in which the embroidery thread does not
usually cover the whole of the ground fabric, but appears in
the form of patterns on the surface or around the edges.
The stitches used are varied and include running stitch,
chain stitch, . . ., herring-bone 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. [emphasis added]
* * *
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.
* * * [emphasis added]
In attempting to ascertain the definition of "embroidery"
for tariff purposes, we find that the Explanatory Notes, although
containing a lengthy discussion of embroidery, define the term
with but one sentence:
-4-
Embroidery is obtained by working with embroidery threads on
a pre-existing ground of * * * fabric * * * in order to
produce an ornamental effect on that ground. [emphasis
added]
When read closely, this sentence does not truly define
embroidery, but merely tells us how it is created, rather than
what it actually is. Thus, as this definition is inexplicit, and
the meaning of the term "embroidery" has been the subject of much
litigation, we believe it is proper to review court cases under
previous tariffs for assistance in ascertaining the common
meaning of the term "embroidery". While HRL 953296 of April 26,
1993, regarding the classification of similar merchandise,
properly noted that TSUSA [Tariff Schedules of the United States
Annotated] cases are not precedential for purposes of
classification under the current tariff, in situations where the
nomenclature at issue is the same and nothing in the text of the
Harmonized Tariff requires a different interpretation, these
previous decisions may be considered instructive. See,
legislative history of the House Conference Report, 1988 U.S.C.
Cong. & Ad. News 1582-1583. In addition, recently, the court in
Lonza, Inc v. United States, Slip-Op 94-50 (1994), citing United
States v. Great Pacific Co., 23 CCPA 319, 324, T.D. 48192 (1936)
and Sears Roebuck & Co. v. United States 46 CCPA 79, 83, C.A.D.
701 (1959), stated:
The common meaning of a tariff term, once established,
remains controlling until a subsequent change in statute
compels a revised construction of the term's meaning.
In this case, the term at issue is "embroidery"; the text of the
Harmonized Tariff does not specifically define the term; and, the
definition provided in the Explanatory Notes is inexact.
Therefore, we believe that a review of previous decisions
regarding what is embroidery, when read in conjunction with the
Explanatory Note for heading 5810, HTSUSA, and definitions from
lexicographic sources, will assist us in ascertaining the common
meaning of the term for classification purposes under the HTSUSA.
In regard to the three types of stitches used in finishing
the sheets at issue, we searched various sources for definitions
of these stitches in order to decide if they are commonly known
as and used as embroidery stitches, but we were only able to find
definitions for the satin stitch. The bourdon stitch, however,
appears to be similar to a satin stitch. The picot stitch seems
to resemble a drawn-fabric-stitch.
Satin stitch is defined in The Modern Textile and Apparel
Dictionary, by George E. Linton (1973), at page 492, as:
-5-
1. Another name for the slanting Gobelin tapestry stitch.
2. Embroidery stitch, either flat or raised, repeated in
parallel lines to give a satinlike appearance; used in fine,
handmade buttonholes, and embroidery.
It is defined in Fairchild's Dictionary of Textiles, at page 508,
in relevant part, as:
Embroidery done in close parallel lines (stitches) over a
printed design. * * *
Satin stitch is defined in Mary Brooks Picken's, The Fashion
Dictionary, (1973), at page 363, as:
Over-and-over stitch laid in straight or slanting parallel
lines close together so as to produce a satiny effect. May
be worked flat or over padding. One of the most widely used
embroidery stitches.
Drawn-fabric-stitch is defined in Fairchild's, at page 195, as:
An embroidery stitch used to draw fabric threads together to
give an openwork effect. See, Drawn Work.
It is defined in The Fashion Dictionary, at page 108, as:
Any stitch used to draw fabric threads together in openwork
effect. See Stitches.
Under "stitches", drawn-fabric-stitch is defined as:
Any stitch producing an open-work effect by drawing fabric
threads together in groups to form a design or pattern.
Done with coarse needle and strong thread for best results.
See Italian hemstitching, punch-work-stitch.
Based upon the above cited definitions, we believe the
stitches used to hem or finish the sheets at issue are commonly
recognized as embroidery stitches.
A careful reading of the Explanatory Note for heading 5810,
HTSUSA, however, reveals that while the note speaks of certain
stitches as being used in creating embroidery, it does not state
that the mere use of these stitches in and of themselves
constitutes embroidery. In other words, just because the stitch
used may be considered a type of embroidery stitch does not mean
that its use automatically creates embroidery. This view is in
accord with that expressed by the court in United States v. Grass
Brothers, 13 Ct. Cust. Appls. 33, T.D. 40866: "Embroidery is made
by stitching, but all stitching is not embroidery." In addition,
the court in Bruce Duncan, Co. v. United States, 52 Cust. Ct. -6-
179, 182, C.D. 2458 (1964), in discussing the merchandise at
issue [a rayon shirt], pointed out that the "chainstitch in gold
thread enhances the appearance of the article and that said
stitch is a recognized embroidery stitch. However, this in and
of itself does not make it embroidery."
Just as the courts have said that using an embroidery stitch
does not automatically create embroidery, they have also pointed
out that simply because a stitch is decorative or ornamental does
not cause it to be embroidery. In United States v. Florea & Co.,
Inc., 25 CCPA 292, 297 (1938), the court stated:
It is not necessary to hold here that every ornamental dot,
stitch or stitching placed upon a textile or a textile
article without a predetermined design constitutes
embroidery. [emphasis added]
The court in Kayser & Co. (Inc.) et al. v. Pevny; United States
Impleaded, 13 Ct. Cust. Appls. 479, T.D. 41368 (1926), in its
opinion, stated that the stitches at issue therein were
decorative, but the court ruled they were not embroidery. Based
upon the court decisions, we do not believe that all ornamental
stitching is embroidery, nor do we believe that simply because
the stitches at issue are embroidery stitches, the sheets at
issue are embroidered.
This view does not conflict with the Explanatory Note for
heading 5810, HTSUSA, which discusses embroidery. While the note
tells us that embroidery is obtained by working threads on fabric
to produce an ornamental effect, the note also speaks of
embroidery as appearing "in the form of patterns on the surface
or around the edge." The note describes embroidery in terms of
creating a design. In discussing how embroidery may be
distinguished from broche fabrics, the note states:
* * * in embroidered fabrics, on the contrary, the ground
fabric is woven before the designs are produced on the
surface. In order to obtain these designs, * * *.
[emphasis added]
It does not appear that the Explanatory Note is meant to denote
all stitching which may be considered decorative or pretty as
embroidery by virtue of simply being decorative. It requires
more as discussed below.
The court decisions on embroidery have focused on design, as
well as ornamental effect. For instance, in United States v.
Waentig, 168 F. 570 (1909), aff'd 174 F. 1023, in determining if
certain towels and doilies with scalloped edges were embroidered
because of stitching around the edges to prevent unraveling, the -7-
court examined various dictionary definitions. From the Century
Dictionary, the court cited the following:
'Embroidery: 1. The art of working with the needle raised
and ornamental designs in threads of silk, cotton, gold,
silver, or other material, upon any woven fabric, leather,
paper, etc. 2. A design produced or worked according to
this art.'
From the New International Encyclopedia, the court cited:
'Embroidery: The art of producing, by means of needle and
thread, ornamental designs upon cloth or other fabrics. The
term 'embroidery' is always applied to a completed fabric;
* * *
In Treasury Decision 26853 (1905) [later modified by T.D. 28170
(1907)], which led to the court decision in Waentig, the Board of
General Appraisers, in ruling whether the merchandise at issue
was embroidered, stated:
From all the definitions available, both from lexicographic
authority and scientific expression, and evidence before us,
it would seem that embroidery is ornamentation with
stitches, made in pursuance of some design.
From more modern sources, we find in The Modern Textile and
Apparel Dictionary, by George E. Linton (1973), at page 212, in
discussing embroidery, in relevant part:
From the Anglo-Saxon word meaning edge or border. * * * In
time, the meaning implied the ornamental designs on fabric.
* * *
[emphasis added]
The same source defines "embroider", at page 212, as:
To ornament textile materials by needlework which
embellishes the design and appearance of the article.
[emphasis added]
Fairchild's Dictionary of Textiles, (1970), at page 209, defines
"embroidery" as:
Originally a needle-work of antique origin, consisting in
executing designs with thread, yarn or other flexible
material on a textile or leather ground. It differs from
lace in that while embroidery always requires a ground to
work on, which is essential part of the needlework, lace has
-8-
no such ground or if it is built up on any ground (like the
needle lace on a pricked pattern) it is not part of the
fabric. * * *
Thus, in deciding whether ornamental stitching constitutes
embroidery, we should evaluate whether it creates or enhances a
design upon the fabric.
Lastly, the courts have focused upon whether stitching was
necessary to complete a good or whether it was additional
stitching purely for ornamental purposes. For example, in Sloane
v. United States, 7 Ct. Cust. Appls. 463, 465, T.D. 37049,
(1917), the court in discussing the common meaning of
"embroidery" stated:
We think that as commonly used the term "embroidery"
signifies a form of ornamental work produced by the needle
on a completed textile or other existing suitable surface,
and necessarily implies the ornamentation and not the
creation of the textile or other surface which it is
designed to embellish. [emphasis added]
In Waentig, 168 F. 570, 571, Judge Holt stated in his opinion:
The fundamental idea of embroidery seems to be that it is
needlework done upon a previously completed, as
distinguished from tapestry or lace work, in which the
design is a part of the original fabric, and the idea that
it shall ornament also seems to be essential to the
definition.
In United States v. Field & Co., 10 Ct. Cust. Appls. 183, 190,
T.D. 38550 (1920), the court concluded:
Therefrom we think it is clearly inferable that to
constitute an embroidery there must be by needlework
processes an ornamental addition superimposed upon a
previously completed fabric or article, not, as in this
case, a needlework ornamentation placed upon a fabric
regarded as a material only, which ornamentation constitutes
substantially the completed fabric or article.
In Florea, 25 CCPA 292, 297, the court in discussing embroidery
surmised:
From all the authorities examined, the definition of the
term "embroidery," when used in a tariff act, ordinarily
requires that for a thing to be embroidered there must be an
ornamental, superimposed stitching which is the result of
needlework. Some of the definitions require that the -9-
stitching must be superimposed upon a previously completed
fabric or article and this consideration is of special
importance when the stitching finishes or helps to finish
the article and has a direct bearing upon the intended
purpose of the stitching.
Thus, in reviewing the numerous judicial decisions on the
meaning of the term "embroidery", it appears the courts have
focused on three factors:
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.
This third factor focuses on the functionality and primary
purpose of the stitching. Returning to HRL 950521, cited at the
beginning of this analysis, it is a mistake to read the statement
quoted from the ruling to mean that one is to disregard the
functionality of stitching in determining if it is embroidery.
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.
Viewing the stitching on the sheets at issue, we believe
that all three stitches may be considered ornamental, i.e.,
decorative. In regard to the picot and bourdon stitches, these
stitches are used to hem the top end of the sheets. The stitches
form a straight line across the top end of the sheets a few
inches from the top edge. However, we find it difficult to view
the straight lines created by these stitches as designs or
patterns. Additionally, the stitching is required to hem the
sheets in order to complete them. The fact that the manufacturer
could have used a plainer stitch to hem the sheets is irrelevant.
It is the choice of the manufacturer which stitches to use to
produce his or her goods. It is not for us to judge the
attractiveness of stitching utilized to create a good and decide,
if a plainer stitch could have been used, that the choice of a
prettier stitch makes it embroidery. In Blairmoor Knitwear Corp.
v. United States, 60 Cust. Ct 388, 393, C.D. 3396, 284 F. Supp. -10-
315 (1968), in discussing whether a crochet finishing edge
(stitch) used to join sweater parts was ornamentation, the court
made a similar observation.
The stitch at the edge joined the sweater parts to finish
the product. The mere fact that a simpler crochet stitch
might have been employed does not provide a basis for
concluding that the use of any other stitch constitutes an
ornamentation.
As to the sheets with the satin stitching on the scalloped
edge, there are two Treasury Decisions and three court cases
directly on point which support a conclusion that the stitching
is not embroidery. In T.D. 26853 (1905), the Board of General
Appraisers classified a towel and doily with scalloped edges upon
which threads have been sewn to prevent the unraveling of the
fabric [referred to as a whip stitch]. In ruling the towel was
not embroidered, the Board stated:
What ornamental effect appears in this case is produced as
much, if not more, by the cutting to give the scalloped
effect as by the needlework, employed in whipping up the
rough edges. * * * the needlework, * * * is employed more
for the purpose of completing the fabric and protecting its
edge in a durable and workmanlike manner than in the
pursuance of any particular design upon the completed fabric
for the purpose of ornamentation. There is no part of this
work which is not essential and devoted to the purpose of
completing the articles in question.
In upholding the decision in T.D. 26853, Judge Holt in
Waentig, at 571, said:
I think the cutting of the two ends of the towel and the
edge of the doily into a scalloped shape is to some slight
extent ornamental; but the needlework which is alleged to be
embroidery is of the plainest description, and simply serves
the necessary and useful purpose of preventing the articles
from raveling at the edge when in actual use. * * * If the
ends of the towels and the edge of the doilies had been left
unscalloped, and the needlework that is already upon them
had been done upon a straight edge, I think that it could
not be claimed that such needlework was ornamental.
Again, in Simpson v. United States, 3 Ct Cust. Appls. 263, T.D.
32569, (1912), in holding that various articles with scalloped
edges finished with needlework were not embroidered, the court
stated:
-11-
* * * to bring an importation within the term "embroidered
articles," something more must be done to a scalloped
article than to employ stitches which are essential to a
utilitarian purpose.
Finally, in T.D. 24243 (1903) involving the classification of
flax towels with scalloped edges with "a cord being laid with the
raw edge of the towel and attached to it by being stitched with
what is known as the overstitch . . .", the Board of General
Appraisers noted "that [while] the scalloping of the edges of the
towels is done for ornamentation, the stitching itself is for the
purpose of securing the raw edge." The Board went on to state
that "the stitching on these towels is evidently to serve a
useful purpose rather that an ornamentation, . . .", and ruled
the towels as not embroidered.
However, Marshall Field & Co. v. United States, 19 CCPA 366,
T.D. 45509, (1932), classifying a scalloped handkerchief took the
opposite view of the above cited cases. In Marshall, the court
recognized the stitching along the scalloped edges had two
purposes, ornamentation and to hold fast the edges of the
article. In ruling the handkerchief embroidered, the court
stated that "the stitching at bar enriches and ornaments the
articles, and we think that this is its primary purpose." It
should be noted that Judge Garrett dissented following the
reasoning discussed in the cases cited above, and Judge Hatfield
concurred with the dissent.
HOLDING:
Based upon the above analysis, the sheets at issue are not
classifiable as containing any embroidery. If printed, the
sheets are classifiable in subheading 6302.21.2040, HTSUSA, which
provides for printed woven cotton sheets, not napped. If not
printed, the sheets are classifiable in subheading 6302.31.2040,
HTSUSA, which provides for woven cotton sheets, not napped. The
textile category is 361 and the duty rate is 7.6 percent ad
valorem for both classifications.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. On that date the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division