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HQ 964735




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 Number 1001-00-104027; classification of “Dupatta” imported from India- not “India Item” exempt from quota

Dear Mr. Ryan:

This is a decision on an the application for further review of a protest timely filed by A. Brod, Inc. Attorney Robert L. Follick of St. Michaels, MD filed Customs Form 19 (PROTEST), dated September 13, 2000, against your decision regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) for a “dupatta” from India.

FACTS:

Protestant has submitted a sample and information to Customs concerning the proper classification of a ladies’ accessory made in India. Specifically, the protest concerns a lady’s scarf 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.

Application for further review 1001-00-104027; concerns “Styles 900380 A and 900380 B.” The polyester fabric is black in color with plastic beading sewn on two edges. The bead work resembles a black plastic heart with a black plastic bead sewn in the middle. 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 a scarf, known as a dupatta 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 scarf 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.)

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.

Protestant states the “dupatta” was 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 dupatta reveals that the ornamentation on the dupatta 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 1001-00-104027 is hereby disqualified from consideration as an “India Item” due to the use of plastic beading for ornamentation.

Thus, it is our determination that the subject merchandise of Protest 1001-00-104027 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 an “exempt certificate” 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. The subject dupatta is 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 is not exempt from quota as an “India Item” under the U.S.-India Bilateral Textile 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

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