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HQ 966895




April 16, 2004

CLA-2: RR:CR:TE 966895 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.21.9000

Area Director
U.S. Customs & Border Protection
JFK international Airport Area
Chief Liquidation and Protest Branch
Building 77
Jamaica, New York 11430

RE: Decision on Application for Further Review of Protest No. 4701-03-101503

Dear Area Director:

This is a decision on an Application for Further Review (AFR) of Protest No. 4701-03-101503, timely filed by Serko & Simon, LLP, on behalf of Lisette Ltd., on November 25, 2003, against your decision as to the classification and liquidation of one entry of “Ladies Handbags (Made of Cowhide Leather)” entered in March, 2003.

FACTS:

You classified the goods under subheading 4202.22.1500, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for handbags, whether or not with shoulder strap, including those without handle, with outer surface of sheeting of plastic or of textile materials, with outer surface of sheeting of plastic, with a general column one duty rate of 16.4 percent ad valorem.

Protestant claims that the merchandise should be classified under subheading 4202.21.9000, HTSUSA, which provides for handbags, whether or not with shoulder strap, including those without handle, with outer surface of leather, of composition leather or of patent leather, other, valued over $20.00 each, with a general column one duty rate of 9 percent ad valorem.

The articles at issue are ten “Ladies Handbags (Made of Cowhide Leather)”. The ten style numbers are 5000, 2537, 2515, 2514, 2516, 2518, 2519, 2522, 2525 and 8317. Two of the ten samples were submitted for laboratory analysis and have been obtained by this office for review. The first sample is identified as style # 5000. It is a black ladies handbag composed of leather strips in a plaited construction on the face and back of the bag and a solid leather gusset and bottom. The bag measures approximately 9 ½ inches in width by 6 ¾ inches in height and is 2 ½ inches in depth. The bag has two outer compartments and one inner compartment with a small inside zippered pocket which is secured by a leather tasseled zipper pull. A detachable buckled shoulder strap of leather is attached to each side of the bag. The second sample is identified as style # 2537. It is a red ladies handbag composed of leather strips in a plaited construction with a solid leather gusset. The bag measures approximately 9 ½ inches in width by 6 ¾ inches in height by ¾ of an inch wide. It has one outer compartment measuring 9 ½ inches wide by 4 ¼ inches in height and is secured by a leather tasseled zipper pull. The inner compartment is secured by a leather tasseled zipper pull and contains one zippered pocket and two open pockets, one which measures approximately 3 ¾ inches wide by 4 ¼ inches in height, and one measuring 2 ½ inches wide by 4 ¼ inches in height. The bag has a leather strap that is knotted and secured on the face and back of the bag.

ISSUE:

Whether the “Ladies Handbags (Made of Cowhide Leather)” have an outer surface of leather or an outer surface of sheeting of plastic.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings.

Heading 4202, provides for:

Trunks, suitcases. . .and similar containers; traveling bags. . . handbags purses. . . 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. [Emphasis added.]

Additional U.S. Note 2 to Chapter 42, HTSUSA, states:

For purposes of classifying articles under subheadings 4202.12, 4202.22, 4202.32 and 4202.92, articles of textile fabric impregnated, coated, covered or laminated with plastics (whether compact or cellular) shall be regarded as having an outer surface of textile material or of plastic sheeting, depending upon whether and the extent to which the textile constituent or the plastic constituent makes up the exterior surface of the article.

In pertinent part, the EN to heading 4202 state that:

Subject to Notes 1 and 2 to this Chapter, the articles covered by the first part of the heading [i.e., the part preceding the semicolon] may be of any material.

The articles covered by the second part of the heading [i.e., the part following the semicolon] 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.).

As previously stated, samples of two of the articles at issue were submitted to Customs and Border Protection’s Laboratories and Scientific Services for analysis. The lab was requested to verify the composition of the material comprising the outer surface of the handbags, and to determine whether the leather was coated or covered with plastics. Laboratory Report Nos. NY 20030590 and NY 20030591, dated May 22 and May 28, 2003, respectively, concluded that the samples are composed wholly of leather and have a light application of plastic material on the outer surface. The amount of plastic material on the outer surface could not be quantified. An inspection of cross sections of the samples under stereomicroscope revealed hair follicles. A portion of the sample that was burnt gave off a protein odor and produced a soft bead that was easy to break. An inspection of the subject handbags by this office also reveals that the handbags have an odor of leather and are soft to the touch.

In Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (2000), the Court of International Trade determined that a handbag made of plastic coated textile was classified as having an outer surface of sheeting of plastic. Although the article in Sarne was a plastic coated textile, the court’s discussion of “of sheeting of plastics” is instructive. The court stated in relevant part:

The parties stipulate the merchandise is a ‘handbag’ whose ‘outer surface’ contains a ‘plastic’ (or ‘plastics’) component that is exposed, entirely ‘covers’ a textile component, and is relatively thin in comparison to its breadth. Therefore, the only word in the heading whose application to the merchandise at issue is seemingly unclear is ‘sheeting.’ As discussed above, the common meaning of ‘sheeting’ is material in the form of or suitable for forming into a broad surface of something that is unusually thin, or is a material in the form of a continuous thin covering or coating.

The plastic component of the handbags at issue herein is certainly thin in comparison to its breadth. It does not appear, however, to be in the form of a continuous thin covering or coating as evidenced by the presence of hair follicles in the cross section of the samples. Moreover, a precise measurement of the amount of plastics present on the exterior surface of the handbags could not be determined. The sample also emitted a protein odor when burned, which further indicates that the natural leather character of the handbags has not been altered by the presence of plastic.

As neither handbag style has a continuous thin covering or coating of plastic, and it is the leather that comprises the entire exterior surface of the handbags and imparts the visual effect, the handbags are classifiable as having an outer surface "of leather" within the meaning of the EN to heading 4202 and the Additional U.S. Note 2 to Chapter 42, set forth supra. Accordingly, the handbags with outer surface characteristics substantially similar to those of style numbers 5000 and 2537 are classified under subheading 4202.21.9000, HTSUSA, as handbags, with outer surface of leather.

HOLDING:

The handbags identified as style numbers 5000 and 2537 are classified in subheading 4202.21.9000, HTSUSA, which provides for “Trunks, suitcases, vanity-cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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 boxes, 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: With outer surface of leather, of composition leather or of patent leather: Other: Valued over $20.00 each.” The applicable general column one duty rate is 9 percent ad valorem.

The protest should be ALLOWED. In accordance with Section IV of the Customs Protest/Petition Processing Handbook, (CIS HB, January 2002, pp. 18 and 22) 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 in accordance with the decision must be accomplished prior to mailing of the decision.

No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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