CLA-2 CO:R:C:T 957099 CMR
Mr. Ashok Kaul
Continental Trade
915 Washington Street
Suite 124
Weymouth, MA 02189
RE: Classification of chainstitch vests from India; "India Item",
exempt from quota
Dear Mr. Kaul:
This ruling is in response to your request of August 24,
1994, requesting classification and status as an "India Item" of
chainstitch vests to be entered through the port of Boston. A
sample was received with your request.
FACTS:
The submitted sample, a chainstitch vest, will be imported
from India. The sample is representative of a line of vests
which will come in three sizes--small, small medium, and medium
large. In your letter, you indicate style 40516 is small medium
and style 40517 is medium large. You also state the vest is
primarily for women and is also known as a hand-embroidered
jawahar jacket.
The sample vest is made of 100 percent cotton woven fabric
with front panels which have been hand-embroidered with 100
percent wool yarn. The garment has a typical vest design. It is
sleeveless and features a full-front opening secured by three
embroidered buttons, a deep V-front, two front pockets, a loose
back belt which does not adjust the fit in any manner, a straight
hemmed back, and embroidered front panels which each have a
pointed V-shape at the bottom. The front button closure of the
jacket is designed with the buttons on the right panel and loops
which fit over the buttons on the left panel (i.e., a left over
right closure).
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Your submission included a description of how chainstitch
vests are made:
Chainstitch vests are made of wool embroidered on a cotton
fabric. The base fabric locally known as dusooty is 100
percent cotton woven on handlooms in Kashmir, India. After
the base fabric is ready the required design is printed on
this fabric. The design is prepared by local designers
called 'Naqash'. The Naqash prepares the required design on
plastic coated tracing paper. Then he perforates this
tracing paper over the design area using an ordinary needle.
This tracing paper with the perforated design is then placed
on the "Dusooty" fabric and rubbed over with a solution of
charcoal powder in kerosene. This solution seeps in through
the perforations in the tracing thus transferring the design
on to the fabric.
The wool used for embroidery is hand dyed locally. The dyer
known as "Rangoor" puts the required quantity of wool in a
copper cauldron under which a wood fire is lit. Once the
water reaches boiling point different dyes are added
depending on the shade required. The wool thus dyed is
ready for embroidery work. The colors are fast and do not
bleed on washing.
The dyed wool with the printed "Dusooty" is given to the
master craftsmen for embroidery. The printed "Dusooty" is
embroidered all over using a hook-needle in the form of
continuous chains. * * *
The description indicates the vest is completely handmade.
ISSUE:
Does the submitted sample qualify as an "India Item"
described in the United States/India bilateral textile agreement
and thus exempt from quota?
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 and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to
[the remaining GRIs taken in order]."
The vest at issue is made of 100 percent cotton woven
fabric. However, the front panels of the garment are embroidered
with 100 percent wool yarn. The wool embroidery yarns completely
cover the cotton ground fabric on the face side. The other side -3-
of the embroidered panels is not readily visible as the vest is
lined with the same cotton woven fabric which creates the
outershell (with the exception of the outershell of the front
panels which consists of the wool embroidery on a woven cotton
ground).
As a woven vest, the garment is classifiable in heading
6211, HTSUSA, which provides for, among other things, other woven
garments. In determining its classification beyond the heading
level, we must look to the section and chapter notes and then to
the GRIs.
It is claimed the garment is primarily worn by women.
Classification of woven garments as women's or men's garments is
directed by Note 8, Chapter 62. That note states:
Garments of this chapter designed for left over right
closure at the front shall be regarded as men's or boys'
garments, and those designed for right over left closure at
the front as women's or girls' garments. These provisions
do not apply where the cut of the garment clearly indicates
that it is designed for one or other of the sexes.
Garments which cannot be identified as either men's or boys'
or as women's or girls' garments are to be classified in the
headings covering women's or girls' garments.
As the garment at issue has a left over right front closure and
nothing about the cut of the garment indicates it is designed for
a particular gender, the vest is classifiable as a men's vest
pursuant to Note 8.
The subject vest is made of more than one textile material,
i.e., cotton woven fabric and wool embroidery yarn. Section XI,
Subheading Note 2 states:
(A) Products of chapters 56 to 63 containing two or more
textile materials are to be regarded as consisting
wholly of that textile material which would be selected
under note 2 to this section for the classification of
a product of chapters 50 to 55 consisting of the same
textile materials.
(B) For the application of this rule:
(a) Where appropriate, only the part which determines
the classification under general interpretative
rule 3 shall be taken into account;
* * *
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(c) In the case of embroidery of heading 5810 only the
ground fabric shall be taken into account.
However, embroidery without visible ground shall
be classified with reference to the embroidering
threads alone.
Note 2, Section XI, states, in relevant part:
(a) Goods classifiable in chapters 50 to 55 or in
heading 5809 or 5903 and of a mixture of two or
more textile materials are to be classified as if
consisting wholly of that one textile material
which predominates by weight over each other
single textile material.
When no one textile material predominates by
weight, the goods are to be classified as if
consisting wholly of that one textile material
which is covered by the heading which occurs last
in numerical order among those which equally merit
consideration.
Following the above cited notes, we must first decide which
part of the subject vest would be selected under GRI 3 for
determining classification and then apply the remainder of the
cited notes.
GRI 3(a) directs us in part to regard the competing headings
(or in this case, subheadings (see GRI 6)) as equally specific
because the subheadings for cotton vests and wool vests each
refer to only part of the materials which make up the vest.
Thus, we must apply GRI 3(b) which provides, in part:
Mixtures, composite goods consisting of different materials
or made up of different components, * * *, which cannot be
classified by reference to 3(a), shall be classified as if
they consisted of the material or component which gives them
their essential character, * * *.
When it is necessary to determine the portion of a garment
that imparts its essential character, we refer to Headquarters
Memorandum 084118 of April 13, 1989. In that memorandum, this
office provided guidelines for determining the essential
character of garments in order to strive for a measure of
uniformity in such determinations. That memorandum provides that
in the case of upper body garments, in the absence of unusual
circumstances:
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* * * if one component exceeds 60 percent of the visible
surface area, that component will determine the
classification of the garment unless the other component:
(1) forms the entire front of the garment;
* * *
In the case of the vest at issue, the embroidered front
panels form the entire front of the garment and therefore, they
will determine the classification of the garment.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System, recognized as the official
interpretation of the tariff at the international level, offers
guidance in regard to distinguishing the various forms of
embroidery. Referring to the Explanatory Notes' discussion on
embroidery, Customs has stated in numerous earlier rulings that
"embroidery without visible ground" is embroidery in which the
ground fabric has been eliminated. Embroidery in which the
ground is retained is "embroidery in which the embroidering
thread does not usually cover the whole of the ground fabric"
[emphasis added]. (See, Explanatory Note for heading 5810, HTS;
and, Headquarters Ruling Letter (HRL) 950809, HRL 950810, HRL
950811, HRL 950813, HRL 950814, HRL 950815, HRL 950817 of March
18, 1992; and HRL 950499 of October 22, 1991).
As the front panels consist of a cotton ground fabric
embroidered with wool yarns, applying subheading note 2(c) cited
above, the garment is classified by the ground fabric, i.e., as
cotton. The embroidery is not considered to be "embroidery
without visible ground" (which would cause classification to be
based on the embroidery yarns) because the ground fabric is
retained after embroidery.
The vest at issue is classified in the provision for men's
other garments, of cotton, vests, in subheading 6211.32.0075,
HTSUSA. Its designation as an "India Item" exempt from quota is
not determined by the HTSUSA, but by the language of the
bilateral textile agreement between the United States and India
regarding such items.
The U.S./India bilateral textile agreement describes "India
Items", in part, as:
* * * traditional folklore handicraft textiles 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.] -6-
These products should not include zip fasteners and must
be ornamented in the characteristic Indian folk styles using
one of the following methods:
* * *
(b) embroidered or crocheted ornamentation,
* * *
[Emphasis added].
A jawahar jacket is defined in the U.S./India bilateral
textile agreement as:
A loose-fitting coat or vest of waist or hip length with or
without buttons traditionally worn over kurtas or Kameez by
men and women.
Having examined the submitted sample, Customs believes it
falls within the description of a jawahar jacket as defined
above, but it fails to meet the requirement as stated in the
bilateral agreement for ornamentation.
Embroidery is one of the forms of ornamentation specified in
the bilateral agreement. Although the front panels of the vest
are embroidered with chainstitch embroidery, this embroidery
creates the front panels; it does not ornament them. Support for
the view that such embroidery is not ornamentation can be found
in United States case law.
In Blairmoor Knitwear Corp. v. United States, 60 Cust. Ct.
388, C.D. 3396, 284 F. Supp. 315 (1968), the United States
Customs Court examined the meaning of the term "ornament". The
court stated therein:
The word "ornament" has customarily been construed in
accordance with its dictionary meaning, to embrace that
which enhances, embellishes, decorates, or adorns.
The court in reaching its decision in Blairmoor discussed the
case of Gimbel Brothers, Inc. v. United States, 27 Cust. Ct. 371,
Abstract 56124, which involved the classification of beaded
handbags. The court ruled in Gimbel that the handbags at issue
were not ornamented because the beads were a component material
in the manufacture of the bags. In discussing Gimbel, the court
in Blairmoor stated:
It was further stated that an article so composed, however
ornamental in character, would not be considered an
ornamental article when the component claimed to constitute -7-
the ornamentation is a material and necessary portion of the
article itself, without which there would be no article.
The jacket at issue here is just such an article. The
chainstitch embroidery on the front panels creates the panels and
without that embroidery they would not exist. Thus, the subject
jawahar jacket does not qualify as an "India Item" within the
terms of the bilateral agreement as it is not ornamented in a
characteristic Indian folk style as required.
Regarding your inquiry as to duty free treatment of this
garment as a folklore item, no such treatment is available.
Additional U.S. Note 2, section XI, HTSUSA, defined the term
"certified hand-loomed and folklore" as used in the tariff as:
. . . such products as have been certified, in accordance
with procedures established by the United States Trade
Representative pursuant to international understandings, by
an official of a government agency of the country where the
products were produced, to have been so made.
Thus, in order to be classified in a provision for certified
hand-loomed and folklore articles, a bilateral agreement must be
established for this purpose. At this time, there is no
bilateral agreement with India establishing procedures for
qualifying articles for classification within the certified hand-
loomed and folklore provisions of the tariff and thus, duty free
treatment is not available.
HOLDING:
The submitted vest is classified in the provision for men's
other garments, of cotton, vests, in subheading 6211.32.0075,
HTSUSA. The garment is dutiable at 8.6 percent ad valorem and
falls within textile category 359. As it fails to meet the
requirements for qualifying as an "India Item" per the terms of
the U.S./India bilateral textile agreement, visas for category
359 are required for entry.
The designated textile and apparel category may be
subdivided into parts. If so, the visa and quota requirements
applicable to the 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 you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your local Customs office.
-8-
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