HQ H003735

January 25, 2008

**CLA-2 OT:RR:CTF:TCM** H003735 GC

**CATEGORY:** Classification

**TARIFF NO.:** 6302.31.5010; 6302.31.5020

Customs and Border Protection

Port of Los Angeles / Long Beach

301 East Ocean Boulevard

Suite 1400

Long Beach, California 90802

**RE:** Protest No. 2704-05-102191; Classification of cotton pillowcases
and sheets with embroidered hem

Dear Port Director:

The following is our decision regarding Protest 2704-05-102191, filed by
Sidley, Austin, Brown and Wood, LLP, on behalf of its client, CMN
International, LLC (CMN), concerning the classification under the
Harmonized Tariff Schedule of the United States (HTSUS), of certain
cotton pillowcases and sheets with an embroidered hem. In preparing this
decision, consideration was given to a supplemental submission, dated
April 30, 2007, provided by counsel. Consideration was also given to the
substance of the meeting that took place between counsel and Customs and
Border Protection (CBP) on January 4, 2008, along with the written
submission by counsel following that meeting, dated January 8, 2008.

**FACTS:**

The sample provided by CMN is a woven 100 percent cotton sateen stripe
pillowcase. The open end is folded to form an approximately four-inch
wide hem. It is sewn with a single needle stitch of thread that is the
same color as the fabric, and then over-sewn with a decorative satin
stitch or merrow stitch. The single needle stitching holding the hem on
the submitted sample is approximately eight stitches per inch, based on
a visual inspection. Visual inspection of the garment also indicates
that the "raw" end of the fabric is turned into the hem with the
underlying stitching, meaning that it is not visible. On the rest of the
pillowcase, the stitching is approximately eight or nine stitches per
inch.[^1] It is stated that the top hem on the flat sheet is the same as
the hem on the submitted sample.

**ISSUE:**

Whether the subject merchandise contains "embroidery", as contemplated
by the HTSUS, in the form of the decorative stitching sewn over the hem?

**LAW AND ANALYSIS:**

Initially we note that the matter is protestable under 19 U.S.C.
§1514(a)(2) as a decision on classification and the rate and amount of
duties chargeable. The protest was timely filed on October 6, 2005,
within 180 days of liquidation of the entry on July 8, 2005, pursuant to
19 U.S.C. §1514(c)(3).

Further review of Protest 2704-05-102191 was properly accorded to
protestant pursuant to 19 C.F.R. §174.24. In accordance with Section
174.24(a), the decision against which the protest was filed is alleged
to be inconsistent with a ruling of the Commissioner of CBP or his
designee, or with a decision made at any port with respect to
substantially similar merchandise. Specifically, it is alleged to differ
from classification decisions at two other ports on the same
merchandise.

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.

The HTSUS subheading implicated in this case is subheading 6302.31,
HTSUS, which provides for "Bed linen, table linen, toilet linen and
kitchen linen: Other bed linen: Of cotton." Because the pertinent
comparison in this case occurs at the eighth digit provision of the
HTSUS, GRI 6 is implicated. GRI 6 states:

> For legal purposes, the classification of goods in the subheadings of
> a heading shall be determined according to the terms of those
> subheadings and any related subheading notes and, *mutatis mutandis*,
> to the above rules, on the understanding that only subheadings at the
> same level are comparable. For the purposes of this rule, the relative
> section, chapter and subchapter notes also apply, unless the context
> otherwise requires.

Thus, the subheadings under consideration here are subheading
6302.31.50, HTSUS, which provides for, cotton bed linen "...Containing
any embroidery, lace, braid, edging, trimming, piping or appliqué work:
Not napped", and subheading 6302.31.90, HTSUS, which provides for,
cotton bed linen "...Other: Not napped."

The principal issue in this case is whether or not the decorative
stitching on the hem of the subject merchandise should be classified as
"embroidery" as contemplated by the HTSUS. Headquarters Letter Ruling
(HQ) 955576, dated June 1, 1994, articulated the definition of
"embroidery."

Before discussing the factors considered in identifying embroidery, it
is worth noting the point made in HQ 955576 that just because a
particular stitch is considered an embroidery stitch does not
necessarily mean that its use automatically creates "embroidery." *See
also* *United States v. Grass Brothers*, 13 Ct. Cust. 33, 35, T.D. 40866
(1925) (stating, "Embroidery is made by stitching, but all stitching is
not embroidery."); *Bruce Duncan, Co. v. United States*, 52 Cust. Ct.
179, 182, C.D. 2458 (1964). The stitching at issue here certainly
qualifies as embroidery stitching, as it is decorative and enhances the
design of the subject merchandise.

HQ 955576 further notes that, "to constitute embroidery there must be by
needlework processes an ornamental addition *superimposed upon a
previously completed fabric or article*..." \[emphasis added\]. *See
also* *United States v. Field & Co.*, 10 Ct. Cust. 183, 190, T.D. 38550
(1920). From the aforementioned and additional court cases, the three
main factors considered in determining whether or not a stitch
constitutes "embroidery" for classification purposes are: (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. With
regards to the third factor, HQ 955576 notes that the function or
purpose of the stitch is a fundamental aspect of the definition of
embroidery developed by the relevant case law.

The function and purpose of stitching was discussed in *United States v.
Endicott Johnson Corp.* (617 F.2d 278 (CCPA 1980)), which protestant
points to as support for its argument that the merchandise at issue here
is not "embroidered." In that case, the U.S. Court of Customs and Patent
Appeals upheld the Customs Court's decision that certain imported shoes
were not ornamented because the functional role of the arch stitching
was "primary to any ornamentative nature." *Id.* at 281. In so holding,
the Court noted that "stitching that serves a significant purpose with
respect to the character, construction, or manufacture of an article --
such as strengthening the material, enabling the manufacturer to produce
the product more efficiently or cheaper, or producing a better product
-- is 'functional' and not merely ornamental." *Id.* at 282.

It should first be noted that *Endicott* discusses ornamentation and not
embroidery, thus limiting its applicability to this case. Nevertheless,
protestant essentially suggests that the embroidery stitching on the
subject pillowcase and sheets is "functional" under *Endicott* because
the embroidery stitch strengthened the hem on the articles and also
prevents against puckering of the fabric. Such a reading of *Endicott*,
however, would almost certainly require any embroidery stitching placed
on top of a hem line to be considered "functional," as it certainly
would strengthen the hem or affect it in some other manner.

The issue in this case, which differs from that in *Endicott*, is
whether the embroidery stitching completes the hem or is superimposed
upon a previously completed article for purely decorative purposes.
Resolution of this issue concerns whether the underlying stitch, at a
frequency of eight stitches per inch, is sufficient to maintain the hem
in the absence of the embroidery stitch. It is important to note that
this issue does not concern whether the embroidery stitch aids in
holding the hem (as any stitch would do so), but whether the embroidery
stitch is necessary for completing the article.[^2]

The Customs Form (CF) 6445 for this case states that the protestant's
position is that the stitching underlying the embroidery stitch of the
subject article constitutes a basting stitch. [^3] In its original
protest and during the January 4, 2008 meeting, counsel for protestant
claimed that the underlying stitching is not necessarily a basting
stitch, but a guide stitch. Regardless of whether the underlying
stitching is claimed to be basting or guide stitching, the issue in this
case remains whether the underlying stitching completes the hem or if
the embroidery stitching is necessary to do so. A guide stitch serves
the purpose, similar to that of a basting stitch, of holding the hem in
place reducing the need for a person to hold the material steady during
the stitching.

Determining whether the under-stitching in this case constitutes basting
or guide stitching is accomplished by analyzing the function of the
stitching in relation to the rest of the good. HQ 965033, dated July 16,
2002, is helpful here. In that case, which deals with the classification
of pillowcases, CBP determined that an embroidery stitch superimposed on
the hem was indeed necessary to complete the article because the stitch
underlying the hem constituted a mere basting stitch that would not
maintain the hem over the course of repeated use. The stitching
underlying the embroidery stitching in HQ 965033 was at a frequency of
four stitches per inch, while the stitching on the other seams was sewn
at a rate of eleven stitches per inch. HQ 965033 held that the
underlying stitching in that case, at a rate of four stitches per inch,
was not sufficient to complete the hem. Consequently, the embroidery
stitching was required to complete the article.

This particular case is distinguishable from HQ 965033. In this case,
the stitch underlying the embroidery stitch on the hem is sewn at a rate
of eight stitches per inch (twice the stitching in HQ 965033) while the
seams not over-sewn with embroidery stitching contain nine stitches per
inch. Nine stitches per inch clearly are sufficient to maintain those
seams over repeated use. Protestant apparently argues that one fewer
stitch per inch renders the underlying stitching insufficient to
maintain the hem. This argument is tenuous at best. It is also
noteworthy that the underlying stitching is of the same color thread as
the rest of the fabric. The inconspicuous nature of the underlying
stitching certainly would cause the operator of the machine sewing the
embroidery stitching over the seam to have a difficult time tracing the
underlying stitching.

To summarize, the stitching underlying the embroidery stitching is not
characteristic of a basting or guide stitch. Furthermore, the rate of
stitching of eight stitches per inch is sufficient to maintain the hem,
making the overlying stitching embroidery. This is particularly evident
in light of the fact that the stitching throughout the rest of the
sample was at a rate of nine stitches per inch. This conclusion is
further strengthened by the fact that the edge of the material is turned
underneath the underlying stitching, meaning that there was no visible
edge to fray. This indicates that the hem was indeed complete prior to
the application of the embroidery stitch. Thus, the embroidery stitching
on the hem of the subject merchandise constitutes embroidery as
contemplated by the HTSUS and defined in HQ 955576.

**HOLDING:**

By application of GRI 1, the 100 percent cotton pillowcase and sheet are
respectively classified in heading 6302, HTSUS, as bed linen. The
pillowcase is specifically provided for in subheading 6302.31.5010,
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 appliqué work: Not napped:
Pillowcases, other than bolster cases." The sheet is specifically
provided for 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 appliqué work: Not napped: Sheets." The general
column one rate of duty at the time of entry was 20.9 percent *ad
valorem*. Merchandise classifiable in subheadings 6302.31.5010, HTSUSA,
falls within textile category 360. Merchandise classifiable in
subheading 6302.31.5020, HTSUSA, falls within textile category 361.

The protest should be DENIED. In accordance with the Protest/Petition
Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to
mail this decision, together the Customs Form 19, to the Protestant no
later than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty days from
the date of the decision Regulations and Rulings of the Office of
International Trade will make the decision available to CBP personnel,
and to the public on the CBP Home Page on the World Wide Web at
www.cbp.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division

[^1]: It should be noted that counsel for CMN has stated that the rate
    of stitching on the seams not over-sewn with the embroidery
    stitching is twelve stitches per inch. However, visual inspection of
    a sample taken from the protested entry conducted by the Port, the
    Commodity Specialist and this office resulted in the conclusion that
    the rate of stitching is no more than eight or nine stitches per
    inch.

[^2]: Protestant submitted the results of tests conducted by an
    independent tester showing that the hem with the embroidery
    stitching was indeed stronger (with 59 pounds of pressure tearing
    the fabric at the seam) than the hem with only the underlying
    single-seam stitching (with 25.8 pounds of pressure breaking the
    seam).

[^3]: It should be noted that while there does not appear to be a
    definitive industry standard for what constitutes a basting
    stitching, the longest available basting stitch length on most
    sewing machines is approximately six stitches per inch. *See*,
    *Reader's Digest Complete Guide to Sewing*.