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HQ 955576

June 1, 1994

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.


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.


What is embroidery and are the sheets at issue classifiable as "containing any embroidery"?


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:

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:

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
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

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:

* * * 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.


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.


John Durant, Director
Commercial Rulings Division

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