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HQ 957099




December 15, 1994

CLA-2 CO:R:C:T 957099 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6211.32.0075

Mr. Ashok Kaul
Continental Trade
915 Washington Street
Suite 124
Weymouth, MA 02189

RE: Classification of chainstitch vests from India; "India Item", exempt from quota

Dear Mr. Kaul:

This ruling is in response to your request of August 24, 1994, requesting classification and status as an "India Item" of chainstitch vests to be entered through the port of Boston. A sample was received with your request.

FACTS:

The submitted sample, a chainstitch vest, will be imported from India. The sample is representative of a line of vests which will come in three sizes--small, small medium, and medium large. In your letter, you indicate style 40516 is small medium and style 40517 is medium large. You also state the vest is primarily for women and is also known as a hand-embroidered jawahar jacket.

The sample vest is made of 100 percent cotton woven fabric with front panels which have been hand-embroidered with 100 percent wool yarn. The garment has a typical vest design. It is sleeveless and features a full-front opening secured by three embroidered buttons, a deep V-front, two front pockets, a loose back belt which does not adjust the fit in any manner, a straight hemmed back, and embroidered front panels which each have a pointed V-shape at the bottom. The front button closure of the jacket is designed with the buttons on the right panel and loops which fit over the buttons on the left panel (i.e., a left over right closure).

Your submission included a description of how chainstitch vests are made:

Chainstitch vests are made of wool embroidered on a cotton fabric. The base fabric locally known as dusooty is 100 percent cotton woven on handlooms in Kashmir, India. After the base fabric is ready the required design is printed on this fabric. The design is prepared by local designers called 'Naqash'. The Naqash prepares the required design on plastic coated tracing paper. Then he perforates this tracing paper over the design area using an ordinary needle. This tracing paper with the perforated design is then placed on the "Dusooty" fabric and rubbed over with a solution of charcoal powder in kerosene. This solution seeps in through the perforations in the tracing thus transferring the design on to the fabric.

The wool used for embroidery is hand dyed locally. The dyer known as "Rangoor" puts the required quantity of wool in a copper cauldron under which a wood fire is lit. Once the water reaches boiling point different dyes are added depending on the shade required. The wool thus dyed is ready for embroidery work. The colors are fast and do not bleed on washing.

The dyed wool with the printed "Dusooty" is given to the master craftsmen for embroidery. The printed "Dusooty" is embroidered all over using a hook-needle in the form of continuous chains. * * *

The description indicates the vest is completely handmade.

ISSUE:

Does the submitted sample qualify as an "India Item" described in the United States/India bilateral textile agreement and thus exempt from quota?

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 vest at issue is made of 100 percent cotton woven fabric. However, the front panels of the garment are embroidered with 100 percent wool yarn. The wool embroidery yarns completely cover the cotton ground fabric on the face side. The other side -3-
of the embroidered panels is not readily visible as the vest is lined with the same cotton woven fabric which creates the outershell (with the exception of the outershell of the front panels which consists of the wool embroidery on a woven cotton ground).

As a woven vest, the garment is classifiable in heading 6211, HTSUSA, which provides for, among other things, other woven garments. In determining its classification beyond the heading level, we must look to the section and chapter notes and then to the GRIs.

It is claimed the garment is primarily worn by women. Classification of woven garments as women's or men's garments is directed by Note 8, Chapter 62. That note states:

Garments of this chapter designed for left over right closure at the front shall be regarded as men's or boys' garments, and those designed for right over left closure at the front as women's or girls' garments. These provisions do not apply where the cut of the garment clearly indicates that it is designed for one or other of the sexes.

Garments which cannot be identified as either men's or boys' or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.

As the garment at issue has a left over right front closure and nothing about the cut of the garment indicates it is designed for a particular gender, the vest is classifiable as a men's vest pursuant to Note 8.

The subject vest is made of more than one textile material, i.e., cotton woven fabric and wool embroidery yarn. Section XI, Subheading Note 2 states:

(A) Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 consisting of the same textile materials.

(B) For the application of this rule:

(a) Where appropriate, only the part which determines the classification under general interpretative rule 3 shall be taken into account;

(c) In the case of embroidery of heading 5810 only the ground fabric shall be taken into account. However, embroidery without visible ground shall be classified with reference to the embroidering threads alone.

Note 2, Section XI, states, in relevant part:

(a) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5903 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.

When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.

Following the above cited notes, we must first decide which part of the subject vest would be selected under GRI 3 for determining classification and then apply the remainder of the cited notes.

GRI 3(a) directs us in part to regard the competing headings (or in this case, subheadings (see GRI 6)) as equally specific because the subheadings for cotton vests and wool vests each refer to only part of the materials which make up the vest. Thus, we must apply GRI 3(b) which provides, in part:

Mixtures, composite goods consisting of different materials or made up of different components, * * *, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, * * *.

When it is necessary to determine the portion of a garment that imparts its essential character, we refer to Headquarters Memorandum 084118 of April 13, 1989. In that memorandum, this office provided guidelines for determining the essential character of garments in order to strive for a measure of uniformity in such determinations. That memorandum provides that in the case of upper body garments, in the absence of unusual circumstances:

* * * if one component exceeds 60 percent of the visible surface area, that component will determine the classification of the garment unless the other component:

(1) forms the entire front of the garment;

In the case of the vest at issue, the embroidered front panels form the entire front of the garment and therefore, they will determine the classification of the garment.

The Explanatory Notes to the Harmonized Commodity Description and Coding System, recognized as the official interpretation of the tariff at the international level, offers guidance in regard to distinguishing the various forms of embroidery. Referring to the Explanatory Notes' discussion on embroidery, Customs has stated in numerous earlier rulings that "embroidery without visible ground" is embroidery in which the ground fabric has been eliminated. Embroidery in which the ground is retained is "embroidery in which the embroidering thread does not usually cover the whole of the ground fabric" [emphasis added]. (See, Explanatory Note for heading 5810, HTS; and, Headquarters Ruling Letter (HRL) 950809, HRL 950810, HRL 950811, HRL 950813, HRL 950814, HRL 950815, HRL 950817 of March 18, 1992; and HRL 950499 of October 22, 1991).

As the front panels consist of a cotton ground fabric embroidered with wool yarns, applying subheading note 2(c) cited above, the garment is classified by the ground fabric, i.e., as cotton. The embroidery is not considered to be "embroidery without visible ground" (which would cause classification to be based on the embroidery yarns) because the ground fabric is retained after embroidery.

The vest at issue is classified in the provision for men's other garments, of cotton, vests, in subheading 6211.32.0075, HTSUSA. Its designation as an "India Item" exempt from quota is not determined by the HTSUSA, but by the language of the bilateral textile agreement between the United States and India regarding such items.

The U.S./India bilateral textile agreement describes "India Items", in part, as:

* * * traditional folklore handicraft textiles products made in the cottage industry. They comprise clothes, clothing accessories and decorative furnishings whose shape and design are traditionally and historically Indian. [Emphasis added.] -6-

These products should not include zip fasteners and must be ornamented in the characteristic Indian folk styles using one of the following methods:

(b) embroidered or crocheted ornamentation,

[Emphasis added].

A jawahar jacket is defined in the U.S./India bilateral textile agreement as:

A loose-fitting coat or vest of waist or hip length with or without buttons traditionally worn over kurtas or Kameez by men and women.

Having examined the submitted sample, Customs believes it falls within the description of a jawahar jacket as defined above, but it fails to meet the requirement as stated in the bilateral agreement for ornamentation.

Embroidery is one of the forms of ornamentation specified in the bilateral agreement. Although the front panels of the vest are embroidered with chainstitch embroidery, this embroidery creates the front panels; it does not ornament them. Support for the view that such embroidery is not ornamentation can be found in United States case law.

In Blairmoor Knitwear Corp. v. United States, 60 Cust. Ct. 388, C.D. 3396, 284 F. Supp. 315 (1968), the United States Customs Court examined the meaning of the term "ornament". The court stated therein:

The word "ornament" has customarily been construed in accordance with its dictionary meaning, to embrace that which enhances, embellishes, decorates, or adorns.

The court in reaching its decision in Blairmoor discussed the case of Gimbel Brothers, Inc. v. United States, 27 Cust. Ct. 371, Abstract 56124, which involved the classification of beaded handbags. The court ruled in Gimbel that the handbags at issue were not ornamented because the beads were a component material in the manufacture of the bags. In discussing Gimbel, the court in Blairmoor stated:

It was further stated that an article so composed, however ornamental in character, would not be considered an ornamental article when the component claimed to constitute -7-
the ornamentation is a material and necessary portion of the article itself, without which there would be no article.

The jacket at issue here is just such an article. The chainstitch embroidery on the front panels creates the panels and without that embroidery they would not exist. Thus, the subject jawahar jacket does not qualify as an "India Item" within the terms of the bilateral agreement as it is not ornamented in a characteristic Indian folk style as required.

Regarding your inquiry as to duty free treatment of this garment as a folklore item, no such treatment is available. Additional U.S. Note 2, section XI, HTSUSA, defined the term "certified hand-loomed and folklore" as used in the tariff as:

. . . such products as have been certified, in accordance with procedures established by the United States Trade Representative pursuant to international understandings, by an official of a government agency of the country where the products were produced, to have been so made.

Thus, in order to be classified in a provision for certified hand-loomed and folklore articles, a bilateral agreement must be established for this purpose. At this time, there is no bilateral agreement with India establishing procedures for qualifying articles for classification within the certified hand- loomed and folklore provisions of the tariff and thus, duty free treatment is not available.

HOLDING:

The submitted vest is classified in the provision for men's other garments, of cotton, vests, in subheading 6211.32.0075, HTSUSA. The garment is dutiable at 8.6 percent ad valorem and falls within textile category 359. As it fails to meet the requirements for qualifying as an "India Item" per the terms of the U.S./India bilateral textile agreement, visas for category 359 are required for entry.

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.

Sincerely,

John Durant, Director
Commercial Rulings Division

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