CLA-2 RR:TC:TE 958119 CMR/RH
Bruce N. Shulman, Esq.
Stein Shostak Shostak & O'Hara
1620 L Street, N.W.
Suite 807
Washington, D.C. 20036-5605
RE: Reconsideration of New York Ruling Letter (NY) 805708 of
January 30, 1995; classification of items referred to as
motifs; classification of doilies; table linen; other
furnishing articles; other made up articles; heading 5804;
heading 6307; heading 6302; heading 6304
Dear Mr. Shulman:
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, 2186 (1993),
notice of the proposed revocation of NY 805708 was published on
November 26, 1997, in the Customs Bulletin, Volume 31, Number 48.
This is in response to the submission from you and Mr. Shostak of
June 20, 1995, on behalf of Lin Lyn Trading, Ltd., requesting
that Customs reconsider our classification decision in New York
Ruling Letter (NY) 805708, dated January 30, 1995. A member of
my staff met with you and your client on December 11, 1995, to
discuss the issues in this case. Thereafter, you tendered a
supplemental request dated April 22, 1996, addressing questions
raised at the meeting.
In NY 805708, Customs classified various items, which you
identify as "motifs," in subheading 5804.30.0090, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), which
provides for lace in the piece, in strips or in motifs; handmade
lace; other. You have requested reconsideration of NY 805708
claiming the goods are properly classified as other embroidery in
the piece, in strips or in motifs, in subheading 5810.99.9000,
HTSUSA. Alternatively, you seek classification under subheading
6307.90.99, HTSUSA (other made up articles).
FACTS:
The goods at issue consist of eight styles of embroidered and
appliqued articles which you refer to as motifs and which have
been identified more specifically as "Window Pane Motifs." Each
item measures approximately eight inches square, has a fiber
content of 55 percent linen and 45 percent cotton, and each is
made in China.
In your first submission, you describe the process by which the
articles in question are produced, in part, as follows:
These motifs are produced by outlining patterns on a large
piece of ground material. Battenburg lace tape measuring
approximately 1/4 inch wide is then appliqued to the ground
material along the outlines that were previously stenciled
thereon. Designs are then embroidered on the ground
material. Portions of the ground material are then removed
and additional needlepoint design elements are added by
sewing threads through the edges of the lace tape, producing
a lace-like effect in the areas in which the ground was
removed.
You describe the articles as consisting of four major types of
material or design elements: (1) the ground, (2) Battenburg lace
tape which is appliqued to the ground, (3) embroidery on selected
portions of the ground, and (4) added needlework in the areas
where the ground has been removed. The items feature various
designs created by the four design elements. These designs
include stars, pinwheels, snowflakes, trees and houses.
Your client sells all of the articles in question to Wimpole
Street Creations which markets them for use in creating craft
items or includes them in craft kits which it markets. You state
that the articles are marketed for various uses as appliques or
insets for wearing apparel or furnishing items such as pillows,
and as components for making quilts or afghans. A copy of a
Wimpole Street catalog was included in your submission.
The specific items at issue are not shown in the submitted
Wimpole Street catalog, but similar items are. In each case, the
items are identified as "doilies."
In NY 805708, the items at issue were classified in heading 5804,
HTSUSA, as lace motifs, based upon an application of General Rule
of Interpretation 3(b), i.e., essential character. It was
determined that the battenburg lace constitutes about 50 percent
of the surface area of the articles and imparts the essential
character of the items.
ISSUES:
Are the submitted "motifs" classifiable in heading 5804, HTSUSA,
as lace in motifs; classifiable in heading 5810, HTSUSA, as
embroidery in motifs; classifiable in heading 6302, HTSUSA, as
doilies; classifiable in heading 6304, HTSUSA, as other
furnishing articles; or, classifiable in heading 6307, HTSUSA, as
other made up articles?
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]."
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System, the official interpretation of the
tariff at the international level, offers useful guidance
regarding the scope of the various headings at issue. Heading
5804, HTSUSA, provides for, among other things, lace in motifs.
The EN for heading 5804 state in part:
It is an essential characteristic of lace that the
design element is not worked on a pre-existing ground.
For the purposes of this heading the term therefore
does not extend to products of similar appearance and,
indeed, sometimes known as lace (e.g., filet lace),
made by filling in or decorating the meshes of a pre-existent ground of tulle or net, or by sewn applique
work on a ground, whether or not the ground is
subsequently wholly or partially removed. Such
products are classified as embroidery in heading 58.10,
as are also true laces which have been subsequently
embroidered, and encrusted lace produced by sewn
applique work.
The EN for heading 5810, which includes embroidery in motifs,
provide in part:
Embroidery is obtained by working with embroidery
threads on a pre-existing ground of tulle, net, . . . ,
lace or woven fabric, . . . , in order to produce an
ornamental effect on that ground. * * *
Thus the manufacture starting with a pre-existing
ground fabric distinguishes embroidery from lace, and lace
should not be confused with embroidery from which the ground
fabric has been eliminated after execution. * * *
In regard to motifs specifically, the EN to 5810 states, 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:
* * *
(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:
* * *
(2) In the form of motifs, i.e., individual pieces of embroidery
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.
Customs Office of Laboratory and Scientific Services analyzed two
of the submitted samples at our request. They confirmed that the
samples are constructed as described in your submission. Due to
the emphasis in the EN regarding the lack of a pre-existing
ground in the construction of lace and the presence of a pre-existing ground in embroidery, and based upon the construction of
the articles at issue, Customs agrees with you that we erred in
NY 805708 in classifying the items in heading 5804 as lace in
motifs.
Although Customs agrees that these items are not classifiable as
lace in motifs in heading 5804, before concluding they are
classifiable as embroidered motifs in heading 5810 we must
examine the scope of that heading and the other possible
classifications, i.e., as doilies in heading 6302, as other
furnishing articles of heading 6304, or as other made up articles
of heading 6307.
Heading 6302 provides for, among other things, table linen. The
EN for heading 6302 state, in relevant part:
These articles are usually made of cotton or flax,
but sometimes also of hemp, ramie or man-made fibres,
etc.; they are normally of a kind suitable for
laundering. They include:
* * *
(2) Table linen, e.g., table cloths, table mats and
runners, tray cloths, table centres, serviettes, tea
napkins, sachets for serviettes, doilies, drip mats.
It should be noted, however, that certain articles
of the above descriptions (e.g., table centres
made from lace, velvet or brocaded materials) are
not regarded as articles of table linen; they are
usually classified in heading 63.04.
* * *
[Underline added].
Heading 6304 provides for other furnishing articles, excluding
those of heading 9404. According to the EN for heading 6304,
furnishing articles include:
[W]all hangings and textile furnishings for ceremonies
(e.g., weddings or funerals); mosquito nets; bedspreads
(but not including bed coverings of heading 94.04);
cushion covers, loose covers for furniture,
antimacassars; table covers (other than those having
the characteristics of floor coverings - see Note 1 to
Chapter 57); mantlepiece runners; curtain loops;
valances (other than those of heading 63.03).
You assert that the articles in question are classifiable as
motifs in heading 5810 because they are not intended or suitable
for use as doilies in heading 6302. Additionally, you claim that
the items are not finished articles in the linen industry but
rather are multi-use components and serve no other function than
to be incorporated or appliqued as an element of embroidery in an
article (i.e., quilts, table cloths, runners and placemats) and
as appliques or inserts for wearing apparel. This, you claim, is
evidenced by the "heavy tape" used on the edges which serve to
facilitate the joinder of the motifs to each other or to other
components to form craft items.
Additionally, in the opinion of Wimpole's president and its chief
designer, doilies used as table linen for furniture must be
designed so that a decorative lace, cut work or a scalloped edge
is visible after a vase, bowl or other object is placed on top of
them. Otherwise, they state that any piece of cloth (i.e., wash
cloth, small towel, handkerchief, potholder, etc.) would qualify
for use as doilies or table linen. You further contend that the
decorative function of doilies can be satisfied only if the edges
have been adorned or ornamented in some fashion with lace, fringe
or the like.
Finally, you assert that doilies have a uniform geometric pattern
and contain relatively small cutouts in the sections on which an
object rests. On the other hand, you claim that the items in
question have relatively large cutouts. A few of the articles
display a picture (i.e., a tree) which you state would not be
visible with an object placed on top of it.
In HQ 953486, dated October 6, 1993 (issued in response to a
request for Internal Advice by you on behalf of Lin Lyn Trading),
Customs reviewed various definitions of doilies and found that
doilies may be both table linen under heading 6302 and home
serving no other function than to be incorporated or appliqued as
elements of embroidery in, for example, underwear or articles of
apparel or furnishings." In rejecting classification in heading
5810, Customs stated:
* * * This office is of the opinion that the articles at
issue have a function other than to be incorporated in or
appliqued to other articles of apparel or furnishings.
These articles are of a size, design and construction that
are well-suited for use as doilies either of the kind used
as table linen or of the kind used as home furnishing
articles. This fact precludes classification within heading
5810, HTSUSA. Moreover, the rulings you cited as
precedential are distinguishable from the instant case in
that those articles were either miniature doilies (See New
York Ruling Letter (NYRL) 886899, dated June 8, 1993) or
they were described as "insets", "appliques", "greeting card
inserts" and various other types of motifs only suitable for
use as accessories for blouses, t-shirts, cards, etc. . . ."
In HQ 954807, Customs considered and distinguished many of the
rulings you cite, i.e, NY 880928 of December 17, 1992; NY 886899
of June 8, 1993; District Decision (DD) 884359 of April 26, 1993;
NY 883658 of March 11, 1993; NY 867739 of October 22, 1991; NY
858018 of November 30, 1990; and, HQ 086008 of February 6, 1990.
For the same reasons stated in HQ 954807 in distinguishing the
above cited rulings, we believe NY 887995 of July 8, 1993
(miniature hearts and garlands), DD 800419 of August 24, 1994
(triangular-shaped motifs), and NY 873296 of April 16, 1993
(beaded and sequined appliques), are distinguishable from the
merchandise at issue here. In these cited rulings, the items at
issue were either miniature doilies or suited only for use as
accessories to other items.
The items at issue herein are, in our view, of a similar size,
design and construction to the doilies in HQ 954807 and to the
doilies (exhibits 1A, 1B, 1C, 1D and 1E) in HQ 953486. We note
that the edges of the doilies in those cases were not adorned
with lace, fringe, etc., and in our opinion, that is not a
mandatory feature for classification as a doily. As defined in
HQ 953486, a doily is a piece of fabric used to protect the
surface of furniture and as decoration. The doilies in question
are constructed of fine fabrics and contain embellishments such
as battenburg lace, embroidery and needle point designs. They
are certainly decorative due to these embellishments and,
although some of the design or embellishment may be covered up by
articles placed upon the doilies, much of the decoration remains
visible. Moreover, the articles, including the lace-like areas,
are sufficient to protect furniture from scratches which could be
caused by the weight or movement of an object placed upon the
doily.
Furthermore, although the items at issue are marketed and sold by
Wimpole Street Creations for use in craft kits, the Wimpole
catalogue consistently refers to similar items as doilies.
[Note, the articles at issue were not shown in the submitted
catalogue]. Classification of doilies as other furnishing
articles or as table linen is a classification based upon use and
that use is the principal use in the United States of goods of
the same class or kind to which the subject goods belong. See,
Additional U.S. Rule of Interpretation 1(a). We note that in
regard to classification by principal use, the Court of
International Trade stated in Group Italglass U.S.A. v. United
States, 17 CIT 1177 (November 1, 1993):
The court stresses that it is the principal use of the class
or kind of goods to which the imports belong and not the
principal use of the specific imports that is controlling
under the Rules of Interpretation.
The use of the subject doilies in craft kits does not affect
their classification which is based upon the principal use of the
class of goods to which they belong. As stated above, the
articles in question feature all the characteristics of doilies
in size, design and construction. In their imported condition,
they are finished doilies, and the fact that crafters may
purchase the doilies to incorporate or applique them as an
element of embroidery in articles of apparel or furnishings
and/or to make ornaments or crafts does not preclude their
classification as doilies upon importation into the United
States.
Finally, for the reasons set forth in the preceding paragraph, we
are unpersuaded by your alternative claim that the doilies are
classifiable under heading 6307, because they are multi-use
articles.
In light of Customs earlier classification decisions on doilies
and the definitions of doilies contained therein, Customs
believes doilies to be articles which as a class are used as
either table linen or other furnishing articles depending upon
the specific characteristics of the individual doilies. Based on
the foregoing, the instant merchandise is classifiable as table
linen (doilies) under heading 6302.
HOLDING:
The merchandise at issue, identified by you as embroidered
motifs, is classifiable as doilies under subheading 6302.52.2000,
HTSUSA, which provides for, inter alia, Other table linen: Of
flax: Other." They are dutiable at the general column rate of
duty at 4.3 percent ad valorem and the applicable textile quota
category is 899. NY 805708 of January 30, 1995, is hereby
revoked. The articles at issue therein are classified based upon
the analysis set forth in this letter.
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 part categories
are the result of international bilateral agreements which are
subject to frequent renegotiations and changes, to obtain the
most current information available, we suggest you check, close
to the time of shipment, the Status Report On Current Import
Quotas (Restraint Levels), an internal issuance of the U.S.
Customs Service which is updated weekly and is available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation (the
ninth and tenth digits of the classification) and the restraint
(quota/visa) categories, you should contact your local Customs
office prior to importation of this merchandise to determine the
current status of any import restraints or requirements.
In accordance with 19 U.S.C. 1625(c)(1), this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C.
1625(c)(1) does not constitute a change of practice or position
in accordance with section 177.10(c)(1), Customs Regulations (19
CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division