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HQ 961292




December 14, 2000

CLA-2 RR:CR:TE MBG

CATEGORY: CLASSIFICATION

TARIFF NO: 6204.44.4010

Mr. Ron Barot
Hobnob, Inc.
P.O. Box 1584
Livingston, NJ 07039

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

Dear Mr. Barot :

This letter is in response to correspondence, received by Customs on December 24, 1997, which was submitted to this office concerning the proper classification of a ladies’ chola made in India. Specifically, your request concerns a ladies’ garment made in India and whether or not the subject item would qualify as an “India Item” 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 item from quota. A sample was submitted to this office for review. We regret the delay in responding to your request.

FACTS:

The sample under consideration is a woman’s woven 100 percent rayon dress. It is worn as a pullover dress which reaches from the shoulders to the ankles. It features a V-shaped neck and loose arm holes with small capped sleeves. Your style number for a rayon sample is #4759 and for a cotton sample #4760.

There is a decorative, printed design on the outer edges of the garment in the shape of a smiling sun figure. Inside of the printed sun design the garment is decorated in a red tie-dye style. You state the printing process is totally done in a hand block printing method. The garment is a product of India.

ISSUE:

Does the garment qualify as an “India Item” 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 garment at issue is 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 “Chola” is defined as “an ankle length, loose fit, long Kurta traditionally worn by religious priests.” A “kurta” is defined therein as “a loose, almost straight cut tunic of any length from the hips to the ankles with quarters, half or full length narrow or loose sleeves, with or without buttons at the neck or cuff but without out-turned shirt-style cuffs or outturned shirt collar.” 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 provide a definition of a “chola” which is acceptable for purposes of qualifying as an India Item and therefore not subject to textile quota restraints. However, the definition of a “chola” 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 an expert in the field of Indian textiles and has also extensively researched publications from a variety of sources. The expert has stated that the smiling sun figure is not a design that is typical of Indian designs which are historical and traditional. Customs is aware that certain traditional folklore Indian designs with an added modern feature are being used by manufacturers to make garments more marketable, however, the Agreement was created to provide access to U.S. markets for goods made in the cottage industry of India which incorporate the historical and traditional designs. In the subject merchandise, the garment has what might be considered a traditional sun figure but imposed on the sun figure is a smiling face complete with a nose, eyes, eyebrows, and mouth. While the sun figure might be considered a traditional design which would qualify as historical and traditional under the terms of the US-India Bilateral Agreement, this subject sun figure with “modern” facial features imposed does not meet the standards set forth in the Head Note to Annex E.

The subject garment’s pattern resembles other Western-style smiling face patterns available on the market for commercial sale rather than merchandise that is considered unique to the traditions or history of India featuring a design that is historically and traditionally Indian as is required by the U.S.-India Bilateral Agreement to receive a visa exemption as a folklore item. Thus it is our determination that the subject merchandise would not qualify as an “India Item” subject to visa exemption as a folklore item. Failing to meet the criteria of the Agreement, the subject merchandise will be subject to textile quota restraints.

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

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