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HQ 964165




July 18, 2000

CLA-2 RR:CR:TE 964165 mbg

CATEGORY: CLASSIFICATION

TARIFF NO: 6204.44.4010

Ms. Kathleen M. Haage
U.S. Customs Service
Area Director, New York/ Newark Area
6 World Trade Center
New York, NY 10048

RE: “Aba” imported from India; not “India Item” exempt from quota

Dear Ms. Haage:

This letter is in response to your request for Internal Advice 00/019 concerning five shipments presented by All Fashion Imports, Inc. of “India Items” which are currently detained. Specifically, your request concerns ladies’ garments made in India and whether or not the subject items would qualify as “India Items” under the provisions of the United States-India Bilateral Textile and Apparel Agreement as notified to the Textile Monitoring Body under Article 2.1 of the Agreement on Textile and Clothing (“Agreement” or “U.S.-India Bilateral Agreement”) which would exempt the items from quota. Samples were submitted to this office for review.

FACTS:

The first sample under consideration, Style #3000, print number 5010, is a women’s woven 100 percent rayon dress. It is a sleeveless pull over dress which reaches from the shoulders to the ankles. The dress is meant to be fitted, but not snug or tight on the wearer. The print design is of various shades of blue bands with some purple and infrequent flowers adorning the print. Style #3000 features a fabric overlay with the same print design. The overlay covers the entire front bodice and back upper portions of the garment ending approximately at the waist. The skirt and bodice are stitched together at the waist with some gathering provided at the seam. Style #3000 also has beaded fringe sewn onto the bottom of the overlay with each strand sewn approximately 2 inches apart and measuring approximately 1 ½ inches in length. The second sample under consideration, Style #4065, print number balck [sic], is a women’s woven 100 percent rayon dress. It is a sleeveless solid black dress which reaches from the shoulders to the ankles. The skirt portion of the dress is of a different weave than the bodice and has a very minimal amount of gathering. The bodice of the dress is ornamented with embroidery in a slightly darker black thread and sewn to the back of the dress are two ties, each measuring approximately 14 inches in length. The ties are not at the side seams, but rather at the back of garment with approximately 10 inches between the ties.

The third sample under consideration, Style #1023, print number 2031A, is a women’s woven 100 percent rayon dress. Style #1023 has short sleeves and is ankle length. The overall design of the garment is rather straight in appearance. Where the skirt is attached to the upper body portion there is minimal gathering, creating an overall appearance which resembles a tunic style dress. The dress is black with a bright colorful floral print and has ties sewn into the side seam. On the bodice of the dress, gold beads have been sewn into the floral design.

The fourth sample under consideration, Style #9099, print number 503, is a women’s woven 100 percent rayon dress. The dress is ankle length with short sleeves, ties in back, and buttons which extend from the neckline to the bottom of the dress. The skirt of this garment is very minimally gathered and the ties are placed toward the middle so that there is eight inches between each tie. Due to the spacing between the ties, they would provide minimal gathering at the waist. There is beaded work sewn into the printed designs of the dress on the bodice. The print has several bands of design of which some are geometric designs and others are of animals such as birds, snails, lizards, and turtles.

The fifth sample under consideration, style number not provided, is a women’s woven 100 percent rayon dress. The dress is ankle length with short sleeves, beaded work sewn into the printed design on the bodice, and ties sewn into the side seams. Where the bodice and skirt are attached, there is very little gathering in the skirt. The printed design of the dress is of flowers in earth tones of brown, green and gold.

All of the garments are products of India. Accompanying these garments are certificates from various Indian agencies and authorities which certify on behalf of the Indian government that each of these dresses qualifies as an aba under the traditional folklore provisions of the U.S.-India Bilateral Textile Agreement. A request was submitted for internal advice to determine if the merchandise can be considered an aba for purposes of qualifying for a visa exemption as an “India Item” under the agreement.

ISSUE:

Do the garments qualify as “India Items” exempt from quota under the U.S.-India Bilateral Textile and Apparel Agreement?

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 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 GRI may then be applied. The Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

The garments at issue are classified under the provision for women’s dresses in subheading 6204.44 HTSUSA, and as such the tariff classification of the subject merchandise is not in question. However, the designation as an “India Item” exempt from quota is not determined by the HTSUSA, but by the language of the United States-India Bilateral Textile and Apparel Agreement regarding such items. (See United States-India Bilateral Textile and Apparel Agreement, Dec. 17 & 19, 1991, Annex E.)

Under paragraph 1 of Annex D of the Agreement, certain products may enter the U.S. free from quota restrictions, provided they qualify as: (B) Traditional folklore handicraft textile products made in the cottage industry of India as defined in the list of "India Items" agreed between both the parties and attached herewith at Annex E.

Annex E of the U.S.-India bilateral textile agreement sets forth a specific list of 39 items which are considered traditional folklore handicraft textile products of India, i.e., “India Items”. Under Annex E, the “Aba” is defined as “an over-garment close-fit at the upper part with a Ghagra type skirt touching the ankles.” The “Ghargra” is defined as: “an ankle length very wide skirt with draw string or hooks at the waist.” Further, the “Head Note” to Annex E, states that “India Items” should not include zip fasteners and must be ornamented in the characteristic Indian folk styles using one of the following methods:

(a) handpainting (including Kalamkari) or handprinting or handicraft tie and dye or handicraft Batik,

(b) embroidered or crocheted ornamentation,

(c) applique work of sequins, glass or wooden beads, shells, mirrors or ornamental motif of textile and other,

(d) extra weft ornamentation of cotton, silk, zari (metal thread in gold/silver) wool or any other fibre yarn.

In determining the eligibility of merchandise subject to the Agreement, Customs is bound to rely upon the terms of the Agreement which provides a definition of an “aba” which is acceptable for purposes of qualifying as an India Item and therefore not subject to textile quota restraints. However, the definition of an “aba” must be read in conjunction with the Head Note to Annex E which further determines what qualifies under the terms of the Agreement. The Head Note to Annex E states in part:

* * * traditional folklore handicraft textile 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.]

In determining what is considered a traditional and historical Indian shape and design, Customs has consulted with experts in the field of Indian textiles and has also extensively researched publications from a variety of sources. The styles of the subject merchandise differ greatly from any of the aba examples which Customs studied. While Customs recognizes that specific styles of dress vary within India from region to region, the basic design of the aba is relatively the same and as such for any “aba” to qualify as an India Item, certainly as a historical and traditional design, that design should in some way resemble those aba examples recognized by experts in the field.

All of the pictures of abas in the books consulted by Customs were very similar in basic shape and design in that all had sleeves; loose cut, full skirts; and were printed in traditional designs and prints. While the shape and design of the subject merchandise varies, none of the garments under consideration meets the “India Items” requirement that the design be historically and traditionally Indian as required by the U.S.-India Bilateral Agreement. These garments resemble other Western-style garments readily available on the market for commercial sale rather than merchandise that is considered unique to the traditions or history of India as is required by the U.S.-India Bilateral Agreement to receive a visa exemption as a folklore item.

Customs has examined the subject merchandise and determined that it fails to meet the criteria of traditionally and historically “India items” for reasons which relate to the styling and design of the dresses. Style #3000 does not have a full gathered skirt and the overall design resembles a straight cut. Style #4065 is not close fitting at the top as required by the Agreement. The skirt of Style #4065 does not have ghagra features such as fullness or any extensive gathering typically found in a ghagra. Style #1023 lacks the fullness required of a ghagra skirt and resembles more of a straight cut. Styles #9099 and the sample with no style number provided have neither a tight fitting bodice nor the fullness in the skirt associated with that of a ghagra. Style #9099 also has buttons extending from the neckline to the bottom of the dress which disqualify the dress as an India Item. All of these dresses resemble Western style dresses in their shape and design. Failing to meet the criteria of the Agreement, the subject merchandise will be subject to textile quota restraints.

Because of the physical features which prohibit treating the dresses as “India Items,” Customs found no need to examine whether the actual print designs were traditional and historical. It is our determination that the subject merchandise would not qualify as an “India Item” eligible for a visa exemption as a folklore handicraft item.

The importer of the subject merchandise has provided “exempt certificates” issued by the Indian government for the subject merchandise. However, the Indian Handicraft Board certification is only one requirement for qualifying as an “India Item.” The merchandise must meet the terms of Annex E, discussed supra. See generally, Libas, Ltd. v. United States, 944 F. Supp. 938, 20 Ct. Int’l Trade 1215, SLIP OP. 96-164, 18 Intl’l Trade Rep. (BNA) 2403 (1996), aff’d in part and vacated in part by, remanded by, Libas, Ltd. v. United States, 193 F.3d 1361, 21 Int’l Trade Rep. (BNA) 1545 (Fed. Cir. 1999).

If you would like information regarding items which are considered “India Items,” exempt from quota, under the U.S./India bilateral textile agreement, we suggest that you contact the Chairman of CITA. He may be reached by writing to him at:

Chairman, Committee for the Implementation of Textile Agreements U.S. Department of Commerce
14th & Constitution Ave., N.W.
Room H-3100
Washington, D.C. 20230

His office may also be contacted at (202) 482-3737.

HOLDING:

The subject merchandise is not exempt from quota as “India Items” under the U.S.-India Bilateral Textile Agreement. It is classifiable under subheading 6204.44.4010, HTSUSA, which provides for “Women’s or girl’s suits, ensembles, suit type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Dresses: Of artificial fibers: Other: Other: Women’s.” The general column one rate of duty is 16.4 percent ad valorem. The textile restraint category is 636.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to 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 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.

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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