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HQ 965074




June 11, 2001

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; HQ 961292 & HQ 964738 affirmed.

Dear Mr. Barot :

This letter is in response to correspondence, dated April 19, 2001, in which you requested reconsideration of the decision to deny “India Item” treatment to a chola with a smiling sun figure 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 in responding to the original request (HQ 961292).

On December 14, 2000, Customs issued HQ 961292 as an initial determination to you on whether the submitted samples qualified as an Indian folklore item. Pursuant to your request, Customs reconsidered the legal opinion expressed in HQ 961292 and thereafter issued HQ 964738, dated March 30, 2001, as an affirmation of HQ 961292. In each of these decisions, Customs has rejected your claim that the subject merchandise qualifies as an India Item. On April 19, 2001, this office received another letter from you in which you have requested that we revisit this determination.

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 HQ 961292, dated December 14, 2000, Customs clarified the proper procedures which must be met for any item to qualify under the terms of the U.S.-India Bilateral Agreement. In HQ 961292, we stated the following:

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.

See HQ 961292 at 3 – 4.

You submitted further information to this office in support of your claim that the smiling sun figure was historically and traditionally Indian.

Please note that the books which you submitted to Customs for review of this issue are being returned to you at this time. In HQ 964738, dated March 30, 2001, we stated:

You submitted four books to this office in support of your claim that the smiling sun figure should be considered a traditional folklore item but we find your sources to be unpersuasive. The pages referenced by you do not contain a smiling sun figure which is identical to that figure which appears on the subject merchandise. The figures in the various texts are typically depicted in a masculine form complete with moustache rather than the smiling sun figure which is presented on the subject merchandise. One of the books submitted refers to flag patterns while another appears to be a children’s story book and none specifically reference the historical nature of this sun figure. Therefore, we do not find your submitted sources to be persuasive and uphold HQ 961292, dated December 14, 2000.

See HQ 964738 at 4.

In response to your most recent letter dated April 19, 2001, this office does not believe that further reconsideration of this issue is warranted at this time. If you would like to further dispute this matter, you may do so pursuant to 19 U.S.C. § 1514(a)(5) by filing a protest with the relevant port(s). (see also 19 CFR 174.) Your customs broker or customs attorney is familiar with the procedures for filing a protest. This office will not engage in any further reconsideration of this matter. Copies of HQ 961292, HQ 964738 and HQ 965074 (this letter) should be provided to the appropriate port(s) if a protest is filed. In light of the foregoing, the port(s) should not approve your protest(s), thus exhausting your administrative remedies and providing you the basis to move this matter forward to a judicial resolution.

Sincerely,

John Durant, Director

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