Protest No. 1601-08-100579; Classification of cotton pillowcases and sheets with embroidered hem

HQ H099756 September 27, 2010 CLA-2 OT:RR:CTF:TCM H099756 CKG CATEGORY: Classification TARIFF NO.: 6302.31.5010; 6302.31.5020 Port Director Customs and Border Protection Port of Charleston 200 East Bay StreetCharleston, SC 29401 RE: Protest No. 1601-08-100579; Classification of cotton pillowcases and sheets with embroidered hem Dear Port Director: The following is our decision regarding Protest 1601-08-100579, filed by Wal-Mart Stores, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain cotton pillowcases and sheets with an embroidered hem. The subject merchandise was entered on July 3, 2008, at the Port of Charleston. CBP liquidated the entries on September 5, 2008, in subheading 6302.31.50, HTSUS. Plaintiff claims classification in subheading 6302.31.90, HTSUS. The protest was timely filed on October 22, 2008, within 180 days of liquidation of the entry on September 5, 2008. FACTS: The contested entry consists of 100% cotton sateen woven pillowcase and sheet sets, style no. COV 425TC. A CF28 (request for information) was issued by the port on July 31, 2008, requesting a sample of the merchandise. Segments cut from the hem of a flat sheet and pillowcase (item no. 631678009, size twin) were submitted by Wal-Mart on August 7, 2008. The open end of the pillowcase and the top hem of the flat sheet are folded to form an approximately 4-inch wide self-hem. It is sewn with a single needle stitch, a second needle stitch which attaches a fusing and then oversewn with a decorative satin stitch. The samples show an underlying stitch of 8-8.5 stitches per inch (spi) holding the hem, with a stitch of 10-10.5 spi holding the fusing material. However, Wal-Mart’s submissions include photographs which differ from the sample provided, showing a stitch of 5.5 spi holding the hem, and a rate of approximately 10.5 spi for the remainder of the stitching. 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 protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004.  (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further review of Protest 1601-08-100579 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 in Headquarters Ruling Letters (HQ) 965033, dated July 16, 2002, and 955576, dated June 1, 1994. 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 provisions at issue are as follows: 6302: Bed linen, table linen, toilet linen and kitchen linen: Other bed linen: 6302.31: Of cotton: Containing any embroidery, lace, braid, edging, trimming, piping or applique work: 6302.31.50: Not napped . . . 6302.31.5010: Pillowcases, other than bolster cases (360) . . 6302.31.5020: Sheets (361) . . Other: 6302.31.90: Not napped . . . 6302.31.9010: Pillowcases, other than bolster cases (360) . . 6302.31.9020: Sheets (361) . . * * * * * At GRI 1, there is no dispute that the instant merchandise is described by and is thus classifiable in heading 6302, HTSUS, as bed linen. At issue is the proper eight-digit classification, which requires the application of GRI 6. GRI 6 requires that the GRI's be applied at the subheading level on the understanding that only subheadings at the same level are comparable. At the eight-digit subheading level, protestant requests classification of the instant merchandise as “other” bed linen (i.e., not containing any embroidery). 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. The type of stitch at issue in the instant case is the satin stitch. A satin stitch is an embroidery stitch. See The Modern Textile and Apparel Dictionary, by George E. Linton (1973), p. 492; the Merriam-Webster English Dictionary Online, at http://www.merriam-webster.com/dictionary/ satin%20stitch. See also HQ 955576, dated June 1, 1994. However, this in and of itself does not make it embroidery. See Bruce Duncan, Co. v. United States, 52 Cust. Ct. 179 C.D. 2458 (1964). When an embroidery stitch is needed to complete an article, that stitch does not create an embroidery stitch. Id. Therefore, the crux of the argument here is whether the stitching is required to create or complete the fabric or article, or whether the stitching is superimposed upon a previously completed fabric or article. In the instant case, resolution of this issue will turn on whether the underlying stitch holding the hem is sufficient to maintain the hem in the absence of the satin stitch. The frequency of the underlying stitch used to hold the hem has generally been the deciding factor in determining whether a particular stitch is necessary to maintain the hem. In the instant case, the sample before us indicates that the frequency of the underlying stitch is approximately eight to eight and a half spi, while the photographs in the protestant’s submission show a frequency of approximately 5.5 spi. We consider a physical sample to be better evidence than a photograph, particularly since the specific item number is identified for the sample. Our decision will thus be based on our physical examination of the sample. Two cases are particularly illustrative in determining whether the frequency of an embroidery stitch is sufficient to maintain the hem. In HQ 965033, dated July 16, 2002, which dealt 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 spi, while the stitching on the other seams was sewn at a rate of eleven spi. Consequently, the embroidery stitching was required to complete the article. On the other hand, CBP determined in HQ H003735, dated January 25, 2008, that the underlying stitch on a set of cotton sheets and pillowcases, at a frequency of eight to eight and a half spi, was sufficient to maintain the hem in the absence of the embroidery stitch. As the additional embroidery stitch was not necessary to maintain the hem, the articles were classified as containing embroidery. In HQ H003735, particular note was taken of the fact that the seams not over-sewn with embroidery stitching contained nine stitches per inch (only one spi more than the embroidery stitching). Similarly, the bottom hem of the flat sheet of the instant set is made and held with the same eight to eight and a half spi, indicating that this amount of stitches is sufficient to maintain the hem in the absence of further embroidery stitching. This case is thus distinguishable from HQ 965033, where the article contained only four spi to hold the hem, which is clearly insufficient to maintain the hem in the absence of any underlying basting stitch. The frequency of the satin stitch at issue in HQ 955576 is unclear; however, that ruling emphasized that the stitch was necessary to prevent the article from unraveling. We do not agree that the satin stitching on the instant articles serves a similar purpose; like in HQ H003735, the satin stitch does not hold together the hem or attach the fusing to the sheet or pillowcase. Straight stitches of eight and ten spi are used to create the articles. The satin stitch is purely decorative in the instant case, sewn onto an already completed article. Therefore, the flat sheet set and pillowcase are “embroidered” as that is understood in the HTSUS. HOLDING: By application of GRIs 1 and 6, and based on the sample of the merchandise provided to CBP, the 100 percent cotton pillowcase and sheet are classified in heading 6302, HTSUS, as bed linen. The pillowcase is specifically provided for in subheading 6302.31.5010, HTSUSA (annotated), 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 2008 general, column one rate of duty 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