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HQ 967504

April 28, 2005

CLA-2 RR:CR:TE 967504 GGD


TARIFF NO.: 4202.22.1500

Barbara Y. Wierbicki, Esquire
Tompkins & Davidson, LLP
One Astor Plaza, 1515 Broadway
New York, New York 10036-8901

RE: Clarification of HQ 963618; Handbag with Outer Surface of Coated Leather and Textile Material; EN to Subheadings 4202.11, 4202.21, 4202.31 and 4202.91

Dear Ms. Wierbicki:

On August 2, 2002, U.S. Customs and Border Protection (CBP) issued to you, on behalf of your client, Avon Products, Inc. (Avon), Headquarters Ruling Letter (HQ) 963618. The ruling affirmed New York Ruling Letter (NY) E89770, dated November 19, 1999, also issued to you on behalf of Avon. In both rulings, a handbag identified by Product Profile (PP) 197866 was classified in subheading 4202.22.1500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides, in pertinent part, for “Handbags With outer surface ofsheeting of plastic.” This office has reviewed HQ 963618, concluding that the classification result is correct, but that aspects of the legal analysis should be clarified. This clarification also applies to HQ 965239, dated August 2, 2002, which adopted and incorporated the legal reasoning and analysis of HQ 963618 in a decision on an application for further review involving the identical handbag.

The Harmonized System Committee recently adopted a new Subheading Explanatory Note in heading 4202. Please find the enclosed memorandum (TC# TCF 05-0858) dated February 23, 2005, from CBP’s Acting Executive Director of Trade Compliance and Facilitation, Office of Field Operations, to CBP’s Directors of Field Operations, for dissemination to port personnel, brokers, and other interested importing parties. On web-based forms of the Harmonized System Explanatory Notes, the new EN is inserted on page 792 before the present EN to subheadings 4202.31, .32, and .39. The new subheading EN states:

“Subheadings 4202.11, 4202.21, 4202.31 and 4202.91

For the purposes of these subheadings, the expression “with outer surface of leather” includes leather coated with a thin layer of plastics or synthetic rubber which is invisible to the naked eye (usually less than 0.15 mm in thickness), to protect the leather surface, no account being taken of a change in colour or shine.”

For classification purposes, the new EN essentially allows a layer of plastic or synthetic rubber to be present on the otherwise uncoated leather surface of trunks, cases, bags, wallets, pouches, and similar containers of heading 4202, if the layer is: 1) invisible to the naked eye; and 2) present to protect the leather surface.

The handbag at issue in HQ 963618 was constructed of two types of materials: 1) a textile-backed plastic sheeting, and 2) a plastic-coated split leather. To classify the bag, CBP employed a longstanding “visible and tactile” standard (See, e.g., HQ 954021, dated November 1, 1993), and a definition of “sheeting” (i.e., “material in the form of a continuous thin covering or coating”) that was derived by the Court of International Trade in Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (Ct. Int’l Trade 2000). In Sarne, the court applied chapter 42’s Additional U.S. Note 2, and the definition of “sheeting” to classify a handbag composed of plastic-coated textile material, and held that the bag had an outer surface of sheeting of plastic. The Sarne court’s analysis and rationale remain relevant to coated textile material but, in light of the new EN, not to coated leather.

Among the rulings discussed in HQ 963618 were several you cited as authority for your position that the Avon handbag had an outer surface of leather, based upon an alleged disregard by CBP of plastic coatings measuring 0.15 mm or less in thickness. We noted that the line of rulings was being considered for revocation. Upon further review, and as elaborated below, we find the rulings to be correct. Moreover, we find that the rulings do not support your position that the Avon bag has an outer surface of leather.

For example, in two of the rulings, containers with surface coatings measuring less than 0.15 mm thick were classified in 4202.21.6000, which provides, in part, for handbags with outer surface of patent leather. In HQ 085188, dated August 25, 1989, the EN defining patent leather was discussed. The handbag at issue, which was covered with a sheet of pre-formed plastics less than 0.15 mm in thickness, was found to have an outer surface of patent leather. In HQ 084844, dated October 10, 1989, the EN definition of patent leather and a ruling on patent leather footwear were discussed. The handbags at issue, which were made of a split leather coated with non-transparent plastic measuring 0.04 mm in thickness, were classified in subheading 4202.21.6000.

The fact that the handbags subject to HQ 084844 and HQ 085188 were classified in the provision for handbags “[w]ith outer surfaceof patent leather” does not indicate a disregard of plastic coatings of 0.15 mm or less in thickness.

In light of what are now commonly accepted practices in the leather industry, and of the new subheading EN, CBP considers containers of split leather or grain leather coated with a protective layer of plastic or synthetic rubber that is invisible to the naked eye to have an outer surface of leather. To this extent, and to the extent that rulings previously considered for revocation are correct, the analysis used in HQ 963618 is clarified. As stated in the enclosed memorandum, questions as to outer surface material, its visibility, etc., will often require resolution on a case by case basis. Importers are advised to use reasonable care in classifying their goods, and encouraged to submit binding ruling requests, with samples, to U.S. Customs and Border Protection, Customs Information Exchange (Attn: Binding Rulings Section), One Penn Plaza, 10th Floor, New York, New York 10119.


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