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HQ 954155

October 8, 1993

CLA-2 CO:R:C:T 954155 BC


TARIFF NO.: 4104.39.2000

District Director of Customs
U.S. Customs Service
1 East Bay Street
Savannah, Georgia 31401

RE: Further review of protest no. 1704-92-100307; classification of buffalo leather, tanned, buffed and embossed; General Explanatory Notes, Chapter 41; upholstery leather; full grain leather; grain split leather

Dear Sir:

This responds to the referenced protest. We have reviewed the matter and our decision follows.


The merchandise at issue is described, generally, as "deeply buffed and embossed pieces of buffalo leather" and, more particularly, as "large pieces of upholstery leather" (July 31, 1992, letter from PROTESTANT's counsel, pages 1 and 2, respectively). The leather is made from grain split leather which is described in the General Explanatory Notes (EN's) for Chapter 41 (Harmonized Commodity Description and Coding System) as "the outer layer of a hide or skin that has been split into two or more layers." PROTESTANT states that the leather has been buffed to such an extent that the natural grain of the outer surface is completely, or nearly completely, removed. After buffing, it is embossed, a process that produces an artificial grain appearance on the surface of the leather. PROTESTANT states that any of the original grain that might have remained after buffing is altered by the embossing.

The samples submitted are marked "Exhibit A" and "Exhibit B." Exhibit A is a small piece of the kind of leather at issue here: buffed and embossed grain split buffalo leather. Exhibit B, as we understand it, is a small piece of grain split leather that has not been buffed or embossed. The samples were submitted for comparison purposes.

This protest covers eight entries made in December of 1991. The entries were liquidated in March and April of 1992 and reliquidated in May of 1992. The protest was timely filed on August 21, 1992.

Customs classified the leather under subheading 4104.31.2000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). PROTESTANT asserts that it should have been classified under subheading 4104.39.2000, HTSUSA. The former subheading covers other bovine leather and equine leather, parchment-dressed or prepared after tanning, full grains and grain splits, buffalo. The latter subheading covers the same bovine and equine leather that is other than full grains or grain splits, buffalo. The duty rate for each subheading is 3.7% ad valorem. The difference is that buffalo leather from Thailand classified under subheading 4104.31.2000, HTSUSA, is not entitled to duty free treatment under the Generalized System of Preferences, while the same leather from Thailand is entitled to such duty free treatment if classified under subheading 4104.39.2000, HTSUSA.


What is the proper classification for the subject buffed and embossed buffalo leather?


The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) applied, as appropriate, in sequential order. That is, if the merchandise at issue cannot be classified by application of GRI 1, then GRI 2 is applied, and so on. General Rule of Interpretation 1 provides that classification is determined in accordance with the terms of the headings and any relative section and chapter notes. Aiding in the classification of merchandise are the Explanatory Notes (EN's) of the Harmonized Commodity Description and Coding System. The EN's constitute the official interpretation of the tariff at the international level. While they are not legally binding, they are consulted for guidance and accorded appropriate weight in making classification determinations. (See Treasury Decision (T.D.) 89-80, 23 Cust. Bull. 379 (1989), 54 Fed. Reg. 35,127 (August 23, 1989).)

For the purposes of this protest decision, we note the following significant facts, upon which this decision is based: The leather to be imported is made from grain split buffalo leather, as defined in the EN's, that has been tanned, buffed and embossed prior to importation, such that the original grain of the leather has been removed and replaced by the artificial grain resulting from the embossing procedure.

PROTESTANT contends that the leather should be classified under subheading 4104.39.2000, HTSUSA. Since the leather at issue has been tanned and prepared after tanning, it is properly classified under the third major subpart of heading 4104, HTSUSA, that covers bovine leather of that description. (The General EN's indicate that processes that meet the description of "prepared after tanning" include buffing (or grinding).) The question is whether the leather falls under 4104.31, HTSUSA, covering full grains and grain splits, or under 4104.39, HTSUSA, the "other" provision that is the alternative six-digit subheading under that subpart of heading 4104, HTSUSA. Both provisions provide specifically for buffalo leather.

The General EN's for Chapter 41 define "full grain leather" as "leather which has not been split, bearing the original grain surface as exposed by removal of the epidermis, with none of the surface removed by buffing or snuffing." The subject buffalo leather is not full grain leather because it has been split and the original grain surface has been removed by buffing.

The EN defines "grain split" as "the outer layer of a hide or skin that has been split into two or more layers." This definition shows that, like full grain leather, grain split leather is characterized by the presence of the original grain surface.

PROTESTANT contends that if removal of the original grain surface by buffing (or snuffing) results in full grain leather losing its status as "full grain leather" under the definition set forth in the EN, then removal by buffing (or snuffing) of the original grain surface of a grain split leather should have the same effect. In other words, in order to qualify as either a full grain or grain split leather under heading 4104, HTSUSA, both the full grain and grain split leather must exhibit an original grain surface; buffing or snuffing that original grain surface away causes the leather to lose its status, under heading 4104, HTSUSA, as a full grain or grain split leather.

We agree. Therefore, although the leather at issue is produced from what is initially a grain split leather, the buffing of that leather to remove the original grain surface, and the embossing of the leather to give it an artificial grain, destroys its status - for classification purposes - as a grain split leather under heading 4104 of the tariff. Of course, if the buffing and embossing occur after importation, the leather will qualify as a grain split leather upon importation.

While you raised some questions concerning the definitions of "full grain" and "grain splits," we reiterate that it is Customs practice to follow the EN's wherever possible. In the absence of sufficient information indicating that an EN is incorrect or inaccurate, and a Customs determination, based on that information, that the EN should not be applied strictly, we will remain inclined, if not bound, to follow it.

Again, on the facts of this protest, the leather in question originates as a "grain split" as defined in the EN. This means that the leather we classify in this protest decision is from the outer layer after the leather has been split, the layer which, before buffing, evidences the original grain surface. The buffing and embossing take place abroad, prior to importation into the United States. If you have legitimate doubts about the veracity of these facts, you are authorized under the regulations to request verifying information/documentation.

Based on the foregoing, we conclude that buffalo leather that has been subjected to the following processes should be classified as other than full grain or grain split leather under subheading 4104.39.2000, HTSUSA: tanning, preparation after tanning by buffing or snuffing to remove the original grain surface, and embossing to imprint an artificial surface grain.


The buffed and embossed buffalo leather at issue is classifiable under subheading 4104.39.2000, HTSUSA. This protest is APPROVED. The entries covered by the protest should be reliquidated, unless you are not satisfied that the merchandise covered by them is as described in this ruling. Please provide a copy of this decision to PROTESTANT, along with the CF 19, Notice of Action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the PROTESTANT no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.


John Durant, Director

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