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HQ 967032





July 19, 2004

CLA-2: RR:CR:TE 967032 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. 4701-03-101622

Dear Area Director:

This is a decision on an Application for Further Review (AFR) of Protest No. 4701-03-101622, timely filed by Serko & Simon, LLP, on behalf of Accessory Exchange LLC, on December 17, 2003, against your decision as to the classification and liquidation of one entry of “100% Cowhide Leather Handbags” 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 four styles of “100% Cowhide Leather Handbags”. The four style numbers are 33225-100-E, 33226-100-E, 33227-100-E and 33325-100-E. Style 33226-100-E has been obtained by this office. Style 33226-100-E is a ladies brown clutch style flap handbag composed wholly of leather. The bag measures approximately 14 inches in width by 7 inches in height. The bag has one main inner compartment with a small inside zippered pocket centered on the back interior of the compartment. A buckled strap of leather is attached to the left side of the bag.

Style 33226-100-E was submitted to Customs and Border Protection’s Office of Laboratories and Scientific Services for analysis. The lab was asked to determine whether the leather was coated or covered with plastics and if so, the thickness of the plastic. Laboratory Report No. NY20030534, dated May 27, 2003, concluded that the sample was “composed wholly of leather and has an application of plastic material on its outer surface. The thickness of the plastic measures 0.0125MM.” The lab summary sheet states that the slide of the sample, when viewed under 100x magnification, indicated leather fibers, which look similar to microfibers.

ISSUE:

Whether the “100% Cowhide Leather Handbags” 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.

In pertinent part 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.]

The EN to heading 4202 state in pertinent part:

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.).

Additional U.S. Note 2 to Chapter 42, HTSUSA, discusses classification and how the outer surface of certain articles of textile fabric that are impregnated, coated or laminated with plastics shall be regarded. The note 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 HQ 963618, dated August 2, 2002, we examined the definition of “outer surface of” for purposes of heading 4202, HTSUSA. We noted that the term is not defined in Chapter 42, or anywhere else in the HTSUSA. In HQ 086775, dated July 9, 1990, Customs stated that the outer surface "is that which is both visible and tactile." See HQ 954021 and the cases cited therein. "Tactile" is defined as follows: "1. Perceptible to the touch: TANGIBLE." "Tangible" is defined as follows: "1a. Discernible by the touch or capable of being touched." Webster's II New Riverside University Dictionary (1984) at 1178 and 1182, respectively. It was determined that the plastic coating on the handbag of HQ 963618 was both visible and tactile.

The plastic constituent of the submitted sample, unlike that of the handbag at issue in HQ 963618, is neither visible nor tactile. The application is very thin and has not changed the appearance of the leather. The plastic, in this instance, appears to have been applied merely for protective purposes. Indeed, the thickness of the plastic quantified by the lab is the least amount the lab’s equipment can detect.

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 material was classified as having an outer surface of sheeting of plastic. Although the material was a plastic-coated textile, the court’s discussion of the term “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 sample handbag 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. The lack of continuity is strongly suggested by the indication of leather fibers similar to microfibers when a slide of the sample was viewed under a microscope.

As the handbag appears to lack a continuous thin covering or coating of plastic, and the plastic is neither visible nor tactile, it is the leather that imparts the visual effect of the exterior surface. The handbag is therefore classified as having an outer surface "of leather" within the meaning of the EN to heading 4202, specifically under subheading 4202.21.9000, HTSUSA, as a handbag with an outer surface of leather.

HOLDING:

The four styles of handbags are classified in subheading 4202.21.9000, HTSUSA, which provides for “handbags 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 CBP 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
Commercial Rulings Division

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