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HQ 950811

March 18, 1992

CLA-2 CO:R:C:T 950811 PR


TARIFF NO.: 5810.92.0040

Mr. Todd Butler
Century Martial Art Supply, Inc.
1705 National Blvd.
Midwest City, OK 73110

RE: Modification of NYRL 854861; Classification of Embroidered Motifs, Patches and Emblems; Embroidery Without Visible Ground

Dear Mr. Butler:

New York Ruling Letter (NYRL) 854861, addressed to you, ruled on the classification of an embroidered flag patch. We have had occasion to review that ruling and have found that the ruling is legally incorrect.


The merchandise is described in NYRL 854861 as embroidered flag patches made of polyester and cotton fiber blend (chiefly man-made fibers) which are intended to be used as appliques on apparel articles. The embroidering threads completely cover the faces and backs of the patches. They were classified under the provision for embroidered motifs without a visible ground, in subheading 5810.10.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).


The issue presented is whether an embroidered motif which has a base fabric that is not visible on its face side is classifiable under a provision for embroidery without visible ground.


Under the Tariff Schedules of the United States Annotated (TSUSA), the predecessor to the HTSUSA, it was Customs position that this type of merchandise was not considered to be embroidered. This is because embroidery, under the TSUSA, was stitching which, except for burnt-out lace, decorated a base fabric. If the base fabric was completely obscured or the stitching actually created the article, as opposed to decorating it, then that stitching was not embroidery. Numerous judicial decisions and dictionary definitions supported that position (e.g., see United States v. Field & Co., 10 Ct. Cust. Appls. 183, T.D. 38550 (1920), and ORR Ruling 75-163, Headquarters Ruling Letter (HRL) 040281, dated September 2, 1975).

However, the HTSUSA is an international based tariff and terms which had specific meanings under the TSUSA may, in the international context, have different meanings. The Harmonized Commodity Description and Coding System, Explanatory Notes, which are the official interpretation of the HTSUSA at the international level (for the 4 digit headings and the 6 digit subheadings), state:

Embroidery is obtained by working with embroidering 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 (e.g., chemically or by cutting) after being embroidered and only the design remains. (at pg. 808)

This language may be interpreted as implying that the TSUSA rule was being carried over to the HTSUSA. However, the Explanatory Notes go on to state:

The embroidery classified here comprises mainly the following three groups.


This is embroidery in which the ground fabric has been eliminated (e.g., by chemical process, by cutting out). Thus the material consists entirely of the embroidered designs * * * [I]t has no background * * *


This is embroidery in which the embroidering thread does not usually cover the whole of the ground fabric.


This consists of a ground of textile fabric or felt on which are sewn, by embroidery or ordinary stitches: (B) Ornamental motifs * * *
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 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 include badges, emblems, "flashes", initials, numbers, stars, national or sporting insignia, etc.

The Explanatory Notes make it quite clear that merchandise such as the subject patches was intended to be classified as part of the "Applique Work" group of embroidery. There is no ambiguity in the description of merchandise intended to be classified as "Embroidery without visible ground". It is "embroidery in which the ground fabric has been eliminated." In addition, it is apparent from the description for "Embroidery with the ground retained after embroidering" that the subject patches were not intended to be included in that grouping.

The description for "Applique Work" embroidery explicitly describes the instant goods--"badges, emblems," and similar articles, and states that the design may be made by embroidery or ordinary stitches.

It is equally evident that the TSUSA concept of embroidery was not intended to be carried forward into the HTSUSA. If "Embroidery Without Visible Ground" only includes embroidery where the ground has been removed, and "Embroidery With The Ground Retained" describes embroidery where the "embroidering thread does not usually cover the whole of the ground fabric", then the only thing left for "Applique Work" embroidery to include (in regard to ornamental motifs) must, by default, be where the ground fabric has been retained but is no longer visible (unlike embroidery under the TSUSA). Based on the plain wording of the Explanatory Notes, no other reasonable conclusion exists.


Accordingly, the merchandise which was the subject of NYRL 854861 is not classifiable as embroidery without visible ground. The proper classification of this merchandise is under the provision for other embroidered motifs of man-made fibers, in subheading 5810.92.0040, HTSUSA, with duty at the rate of 8.4 percent ad valorem. Currently, there is no textile restraint category designation applicable to this merchandise.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, pursuant to Section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), NYRL 854861 is modified to reflect the above classifications effective with the date of this letter. If, after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you may have with respect to this matter. Any submission you wish to make should be received within 30 days of the date of this letter.

This modification is not retroactive. However, NYRL 854861 will not be valid for importations of the subject patches arriving in the United States after the date of this notice. We recognize that pending transactions may be adversely affected (i.e. NYRL 854861 will not be applicable to merchandise previously ordered and arriving in the United States subsequent to this modification). If it can be shown that you relied on NYRL 854861 to your detriment, you may apply to this office for relief. However, you should be aware that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

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 renegotiations and changes, to obtain the most current information available, we suggest that 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 available for inspection at your local Customs office.


John Durant, Director

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