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HQ 964576




March 30, 2001

CLA-2 RR:CR:TE mbg

CATEGORY: CLASSIFICATION

TARIFF NO: 6214.30.0000

Port Director
Port of New York
C/o Chief, Residual Liquidation & Protest Branch 6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Decision on Application for Further Review of Protest Numbers 1001-00-103300, 103301 & 103302; classification of “Dupatta” imported from India

Dear Mr. Ryan:

This is a decision on an the applications for further review of protests timely filed by A. Brod, Inc. Attorney Robert L. Follick of St. Michaels, MD filed Customs Form 19 (PROTEST), dated August 1, 2000, against your decision regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) for “dupattas” from India.

FACTS:

Protestant has submitted samples and information to Customs concerning the proper classification of ladies’ accessories made in India. Specifically, the protest concerns ladies’ scarves 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 items from quota.

Application for further review 1001-00-103300 concerns “Style 7862681 # No. 99700 Dupatta.” The light teal colored polyester fabric has plastic beading sewn on the fabric in a diagonal striped pattern. In addition, the merchandise has a diagonal line of embroidery in between the rows of plastic beading. The merchandise is approximately 72 ½ inches long by 20 inches wide.

Application for further review 1001-00-103301 concerns “Style 7865046-P # No. 900276 Dupatta.” The polyester fabric is printed with a faux animal skin pattern in a black and blue coloring scheme. Black plastic beads have been sewn around some of the circles on the fabric but do not appear to have been done so pursuant to any sort of pattern. In addition, a few solitary sequins and single plastic beads are sewn randomly onto the fabric. There is a seven inch black textile fringe trim with a tassel on the shorter edges of the dupatta. The merchandise is approximately 74 ½ inches long by 20 inches wide.

Application for further review 1001-00-103302 concerns “Style 786282 # No. 99689 Dupatta.” The polyester fabric is a light tan color with plastic beading sewn around all four edges. There is a three inch long fringe made of plastic beads sewn on the shorter edges of the dupatta. The merchandise is approximately 72 inches long by 20 inches wide.

Protestant filed an Application for Further Review with Customs to protest Customs determination that the subject merchandise does not qualify as an “India Item“ under the U.S.- India Bilateral Agreement. Review of Protestant’s Application for Further Review was granted pursuant to 19 C.F.R. § 174.24(c), which authorizes this office to review protests which were previously ruled on by Customs but in which a legal argument was not considered at the time of the original ruling. The subject protest involves the classification of scarves, known as dupattas under the Agreement, which warranted further review in light of arguments concerning Customs prior classification of such merchandise.

ISSUE:

Does the merchandise 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 merchandise at issue is properly classified under subheading 6214.30.0000, HTSUSA, as “Shawls, scarves, mufflers, mantillas, veils and the like: Of synthetic fibers,” and as such the tariff classification of the subject merchandise is not in question. Protestant does not dispute the classification of the subject scarves in this tariff provision. 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.)

Qualification of India Items

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 “Dupatta” is defined as “a scarf usually about [four feet] long, wrapped by women along with Kurta and Churidar. This also included other types of scarves worn in varied sizes, the characteristics being the same as above.” 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.

(Emphasis added.)

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 “dupatta” which is acceptable for purposes of qualifying as an “India Item” and therefore not subject to textile quota restraints. However, the definition of a “dupatta” 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.

Protest 1001-00-103302

Protestant states the “dupattas” were individually hand made and hand embroidered, or made with the use of hand operated devices, from fabric which was hand produced in India. However, examination of the subject scarves reveals that the ornamentation on the merchandise which is required under the Bilateral Agreement is done with plastic bead work. Customs did not undertake any additional testing to verify whether the subject merchandise was handmade because the use of plastic beading precludes consideration of the subject merchandise as an India Item under the terms of the Agreement. In the Head Note to Annex E (c), the Agreement specifically lists the types of acceptable applique work and specifically includes glass or wooden beads. Customs must interpret the terms of the Agreement as it is written and therefore, must strictly adhere to the eo nomine reference to glass and wooden beads and thus the apparent exclusion of plastic beads. The merchandise subject to Protest 1001-00-103302 is hereby disqualified from consideration as an “India Item” due to the use of plastic beading for ornamentation.

Protest 1001-00-103300

The Head Note to Annex E specifically includes a reference to embroidery as a means of ornamentation which is considered characteristic of Indian folklore styles under the terms of the Agreement. The merchandise subject to Protest 1001-00-103300 also contains plastic bead work which is not acceptable for ornamentation under the Agreement, however, in addition the subject scarf contains diagonal lines of embroidery. The embroidery on this scarf appears to be done with zari (metal thread in gold or silver) in between the diagonal rows of plastic bead work. The determinative issue for this Protest thus turns on whether the zari stitches are considered embroidery.

Although the term “embroidery” is not defined in the U.S.- India Bilateral Agreement, the HTSUS or the Explanatory Notes to the Harmonized Commodity Description and Coding System (“EN”), some guidance is offered in the EN to heading 5810, HTSUS, which provides for embroidery in the piece, in strips or in motifs. In addressing embroidery, 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 the 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.

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.

In addressing embroidery with the ground retained after embroidering, the EN state, in relevant part:

This is embroidery in which the embroidering thread does not usually cover the whole of the ground fabric, but appears in the form of patterns on the surface or around its edges. The stitches used are varied and include running stitch, chain-stitch, back or lock-stitch, herring-bone stitch, point de post, seed-stitch, loop-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.

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.

In Headquarters Ruling Decisions (“HQ”) 955576, dated June 1, 1994, Customs gave a lengthy review of relevant court cases which addressed the meaning of “embroidery”. In essence the courts have pointed out that the use of an embroidery stitch does not automatically create embroidery any more than does the use of a decorative or ornamental stitch. The term “embroidery” basically signifies a form of ornamental work produced by the needle on a completed textile or other existing surface. This implies the ornamentation and not the creation of the textile or other surface which it is designed to embellish. In particular, the courts have focused on the following:

1. whether the stitching is ornamental;
2. whether the stitching creates or enhances a design or pattern; and 3. whether the stitching is superimposed on a previously completed fabric or article, or whether the stitching is required to create or complete the fabric or article.

As was stated in HQ 955576:

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.

There have been cases ruled upon by this office where the embroidery present on the item was not considered significant enough to classify the good as an embroidered item. In HQ 086860, dated November 9, 1990, for example, we ruled that a triangle embroidered on one corner of a handkerchief was negligible and did not warrant classification as an embroidered product. Additionally, in HQ 955576, dated June 1, 1994, we stated that just because the stitch used may be considered a type of embroidery stitch, it does not mean that its use automatically creates embroidery. It should be noted that HQ 955576 also pointed out that in Marshall Field & Co. v. United States, 19 CCPA 366, T.D. 45509 (1932), classifying a scalloped handkerchief, the court recognized the stitching along the scalloped edges as having two purposes, as ornamentation and as stitching to hold fast the edges of the article. It is thus clear, that a determination of whether the stitching inherent in a product is considered embroidery or not requires a careful evaluation of the three factors stated above.

In applying the above stated factors to the subject dupatta, this office finds that the zari stitching on the merchandise would be considered embroidery. The zari stitching is ornamental and enhances the overall design pattern of the dupatta. The zari stitching is on the dupatta in addition to the plastic bead work and it is plausible that the plastic bead work alone could have been used to decorate the dupatta. Therefore, Protest 1001-00-103300 should be granted due to the embroidery on the dupatta which will qualify the merchandise as an “India Item” under the terms of the U.S.-India Bilateral Agreement.

Protest 1001-00-103301

The Head Note to Annex E specifically includes a reference to applique work as a means of ornamentation which is considered characteristic of Indian folklore styles under the terms of the Agreement. The merchandise subject to Protest 1001-00-103301 also contains plastic bead work which is not acceptable for ornamentation under the Agreement, however, the subject scarf also contains a miniscule number of sequins randomly sewn onto the scarf.

Although the term “applique work” is not defined in the U.S.- India Bilateral Agreement, we note the following definitions of applique:

Decoration laid on and applied to another surface, as band or separate design of petals, leaves, figures, etc. Used on lace, fabric and leather. The Language of Fashion, by Mary Brooks Picken, 3 (1939).

Material that is cut out and sewn, embroidered, or fastened to a fabric. Fairchild’s Dictionary of Textiles, 22 (1996).

A design made separately and then sewn on a cloth or a garment. Dictionary of Fiber and Textile Technology, 8, (1989).

A decoration or design made separately then embroidered, pasted, or sewn on a fabric or garment. Often used on lace, leather, woven or knitted fabrics. A Dictionary of Textile Terms, by Dan River, 7 (1980).

It is the opinion of this office in noting the definition of applique work in the textile sources noted above, the sequins sewn onto the subject merchandise would not constitute “applique work.” The sequins sewn onto the subject merchandise do not constitute sufficient decoration or motif. Furthermore, where the sequins appear there is only one solitary sequin, rather than any set pattern or design, sewn onto the scarf in what appears to be a random order. The sequins do not qualify as applique work and therefore, as the scarf does not contain any ornamentation as set forth in the Head Note to Annex E of the U.S. India Bilateral Agreement, the subject merchandise would not qualify as an “India Item.”

Thus, it is our determination that the subject merchandise of Protest 1001-00-103301 and Protest 1001-00-103302 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 Protestant 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 the Protestant would like information regarding items which are considered “India Items,” exempt from quota, under the U.S.-India Bilateral Textile Agreement, we suggest contacting 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:

Protest should be denied in part and granted in part. The subject dupattas are classifiable under subheading 6214.30.0000, HTSUSA, as “Shawls, scarves, mufflers, mantillas, veils and the like: Of synthetic fibers.” The general column one rate of duty is 5.3 percent ad valorem. The textile restraint category is 659.

The subject merchandise of Protest 1001-00-103301 (Style 7865046-P # No. 900276) and Protest 1001-00-103302 (Style 786282 # No. 99689) are not exempt from quota as “India Items” under the U.S.-India Bilateral Textile Agreement. The subject dupatta of Protest 1001-00-103300 (Style 7862681 # No. 99700) does qualify as an “India Item” under the U.S. India Bilateral Agreement.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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