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HQ 962809





September 21,2000

CLA-2 RR:CR:GC 962809 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.33; 3926.90.35

Ms. Despina Keegan
Serko & Simon, LLP
One World Trade Center
Suite 3371
New York, NY 10048

RE: Purses with sequined covered designs

Dear Ms. Keegan:

This is in regard to your letter of January 7, 1999, to the Director, National Commodity Specialist Division, New York, in which you requested a binding ruling under the Harmonized Tariff Schedule of the United States (HTSUS), as to the classification of several purses on behalf of Sarne Corp./Dover Kidz. Your letter, together with the samples, was referred to this office for reply. In preparing this ruling, consideration was also given to your letter of September 21, 1999. We regret the delay in responding.

FACTS:

The articles under consideration are five sequin-covered, beaded purses each with a braided shoulder/neck strap, textile lining, zipper closure. The purses are identified as follows:

Rectangular shoulder purse with candy cane design-style # 03728. Round purse with Christmas wreath and a bear design-no style number provided Heart-shaped purse with bear holding a present design-style # 03728 Shaped shoulder purse with Santa design-style # 03729 Shaped shoulder purse with snowman design –style # 03728

Item 1 has a top zippered opening and measures approximately 4” in width by 5” in height. Items 2, 3, 4 and 5 are round or shaped purses with an external zippered section which closes on the back and measures approximately 3” wide.

ISSUE:

Whether the sequined covered purses are classifiable as other articles of plastics, under heading 3926, HTSUS, as purses within heading 4202, as other made up articles in heading 6307, or as “festive” articles under heading 9505, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914 (con.):

Other (con.):
Beads, bugles and spangles, not strung (except temporarily) and not set; articles thereof, not elsewhere specified or included

Handbags

Other

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper: Handbags, whether or not with shoulder strap, including those without handle:

Other made up articles, including dress patterns:

Other

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

9505.10 Articles for Christmas festivities and parts and accessories thereof:

Christmas ornaments:

Other:

9505.10.40.20 Of plastics

Of the four possible headings, the first under consideration is heading 4202, HTSUS, as this heading provides eo nomine for handbags. However, the subject samples are excluded from this heading. The ENs to heading 4202 provide, in pertinent part that:

The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.). The expression "similar containers" in this second part includes note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewelry rolls, shoe-cases, brush-cases, etc. (Emphasis added).

If a container falls within the first part of the heading, it may be composed of any material. Where a container falls in the second part of the heading, it is excludable from heading 4202, HTSUS, if it is not composed of the materials specified therein.

In this case, the subject purses are precluded from this provision, as their outer surfaces are not wholly or mainly covered with textile, nor plastic sheeting. Rather, they are covered with sequins, spangles and beads, materials not listed within the heading. See HQ 954816 dated December 7, 1993 (finding inter alia, a sequined beaded waist bag not classifiable in heading 4202 as a travel bag.)

In your letter of September 21, 1999, you indicated that you believe that the subject purses are classifiable in 9505.10.4020, HTSUS, instead of subheading 9505.90.60 (which was indicated in your letter of January 7, 1999).

First, you argue that the subject purses are not classifiable within Chapter 39 because Note 2(v) to Chapter 39 precludes articles of Chapter 95, thereby prima facia eliminating Chapter 39 and classifying the subject purses in subheading 9505.10.4020. We disagree. We do not find the purses to be per se classifiable within Chapter 95. Note 2(v) to Chapter 39 cannot be applied until it is determined whether the goods are classifiable within heading 9505.

Similarly, you rely on exclusionary Notes in your second argument, asserting that Chapter 95 Notes (c) and (k) do not preclude the subject goods from Chapter 95. Those Notes provide:

(c) Yarns, monofilament, cords or gut or the like for fishing, cut to length but not made up into fishing lines, of Chapter 39, heading 4206 or Section XI [emphasis added];

(k) Parts of general use, as defined in Note 2 to Section XV, of base metal (Section XV), or similar goods of plastics (Chapter 39) [emphasis added]

We agree that neither of the above Notes is applicable in this case. It does not follow, however, that any good not excluded from Chapter 95 is therefore included.

Rather, merchandise is classifiable under the HTSUS in accordance with the GRIs. GRI 1 provides that “for legal purposes, 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 GRI’s]”.

In this case, three of the five samples—the rectangular purse with the candy cane design, the round purse with the Christmas wreath and bear design, and heart-shaped purse with bear—are entirely covered with plastic sequins, beads and spangles. The rectangular purse with candy cane design, due to its carrying capacity is considered at GRI 1, classifiable in subheading 3926.90.33, which provides eo nomine for handbags of beads, bugles and spangles. The round purse with Christmas wreath and bear design and the heart-shaped purse with bear are considered at GRI 1, classifiable within subheading 3926.90.35 which provides for other articles of beads, bugles and spangles.

The two remaining samples-the shaped Santa and snowman shoulder purses-have exterior backs composed of textile material. Described in part by headings 3926 and 6307, these two purses are composite GRI 3(b) goods as they are composed of textile fabric on one side and sequins and plastic beads on the other. GRI 3(b) provides:

When by application of Rule 2 (b) or for any other reason, goods are, prima facia, classifiable under two or more headings, classification shall be effected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, 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, insofar as this criterion is applicable.

Because the subject purses are composite goods consisting of textile fabric, sequins and plastic beads, by application of GRI 3(b), they must be classified as if they consisted of the material which gives them their essential character. The EN to GRI 3(b) provides:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

As the nature and design of the plastic sequins are something other “than an accessory or trim by virtue of the fact that they are so extensive and clearly constitute a significant portion of [the purses’] character”, the plastic sequins impart the purses’ essential character. See HQ 950314, dated November 8, 1991, (classifying a partially covered man-made textile cap sample which was to be completely covered with sequins as indicated by submitted photos). Because these purses are considered GRI 3(b) goods, these purses are classifiable in subheading 3926.90.35, HTSUS, which provides for other articles of plastics and articles of other materials of headings 3901 to 3914.

You argue that the subject purses are “festive” articles within heading 9505, HTSUS, as construed by the courts in Midwest of Cannon Falls v. United States, 122 F.2d. 1423 (Fed. Cir. 1997) (hereinafter Midwest) and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). In Midwest, the Court addressed the scope of heading 9505, specifically the class or kind of merchandise termed “festive” articles and provided new guidelines for classification of such goods in this heading. In general, merchandise is classifiable as a “festive” article in heading 9505, when an article, as a whole:

Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and; Is associated with or used on a particular holiday.

Based on a review of the Midwest articles, Customs is of the opinion that the Court has included within the scope of “festive” articles decorative household articles which are representations of an accepted symbol for a recognized holiday and utilitarian/functional articles if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. See 32 Customs Bulletin 2/3, dated January 21, 1998; see also HQ 961833 dated May 19, 1999 (holding brooches as articles of personal adornment and not classifiable within heading 9505.)

We find the subject purses do not satisfy Midwest as they are not of the same class or kind as articles of heading 9505. They are apparel accessories and not decorations for the home or other surroundings. See HQ 961933, dated August 20, 1999, (classifying lapel pins as articles of personal adornment and not three-dimensional utilitarian articles of an accepted symbol for a recognized holiday).

In addition to the criteria in Midwest listed above, the Court considered the general criteria for classification set forth in Carborundum. Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind known as “festive” articles. Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

You argue that Carborundum is satisfied because the articles will be sold to consumers who will carry them during the Christmas season in celebration of the holiday. We disagree. You have not applied the Carborundum factors with any particularity to these goods. Nor have you established that the purses’ principal use is the same as those articles which form the class or kind of “festive” articles in heading 9505. Therefore, the subject purses are not classifiable within heading 9505.

HOLDING:

The subject rectangular shoulder purse with candy cane design is classifiable in subheading 3926.90.33, HTSUS, which provides for handbags, dutiable at the rate of 6.5 percent ad valoreum.

The remaining purses are classifiable in subheading 3926.90.35, HTSUS, which provides for other articles of plastics and articles of other materials of headings 3901 to 3914, dutiable at the rate of 6.5 percent ad valoreum.

Sincerely,

John Durant, Director

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