CLA-2 CO:R:C:G 081224 DFC

Norman C. Schwartz, Esq.
Siegel, Mandell & Davidson, P.C.
Counsellors at Law
One Whitehall Street
New York, New York 10004

RE: Tariff classification of ladies' portfolios manufactured in Korea.

Dear Mr. Schwartz:

In a letter dated October 22, 1987, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of ladies' portfolios. Samples were submitted for examination.

FACTS:

The sample designated as style EG-155 is a leather and textile portfolio measuring 16-1/4" x 11-1/8". It has leather handles, 4 pockets, and a leather carry strap. Only one side has textile embellishment or ornamentation providing a "brocade" effect.

The sample designated as style "Viaggio" 145 is similar to style EG-155 except that the textile material appears on both sides.

ISSUE:

Is the essential character of the outer surfaces of the portfolios imparted by their leather components?

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LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "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 GRIs, taken in order]." In other words classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

In this instance General Rule of Interpretation 3 is applicable. Its relevant portions provide as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete description of the goods.

(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.

The Explanatory Notes for GRI 3(b) state in pertinent part as follows:

(VIII) 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.

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Inasmuch as the outer surface of both sample portfolios consists of both textile and plastics the competing provisions are subheading 4202.11.0030, HTSUSA, as attache cases, brief cases and similar containers with outer surface of leather or subheading 4202.12.8030, HTSUSA, as attache cases, brief cases and similar containers with outer surface of textile materials, of man-made fibers. Since the outer surface of the portfolios consists of different materials classification must be based on the material that imparts the essential character to the merchandise.

You claim that leather imparts the essential character to the portfolios. In support of this position you cite the case of Canadian Vinyl Industries, Inc. v. United States, 76 Cust. Ct. 1, C.D. 4626 (1976), wherein the court found that certain polyurethane skin with a nylon fabric backing was classifiable as flexible sheets "almost wholly of plastics" made in imitation of patent leather in item 771.40, Tariff Schedules of the United States. For tariff purposes the phrase "almost wholly of" means that the essential character of the article is imparted by the named material. In finding that the polyurethane skin supplied the essential character of the article, the court concluded that the essential character of this article is the distinctive visual and tactile quality of the polyurethane "skin." These qualities gave the article its own special nature. The court further elaborated saying that "the polyurethane skin of this importation, in addition to supplying the essential visual and tactile characteristics, also contributes attributes of strength and flexibility in conjunction with the nylon backing."

Following the court's reasoning in the above-cited case you assert that leather imparts the essential character of the outer surfaces of the portfolios. You point out that in both styles, the leather contributes the essential look and feel of the articles. The textile portions do no more than embellish or "dress up" the portfolios. Style EG-155 is markedly of leather as its essential character in that only one of its sides contains the fabric decoration. Also, while style 145 has both sides embellished with textile material, the label emphasizes the leather aspects of the item.

Further, you claim that cost considerations support the conclusion that leather imparts the essential character to the portfolios noting that the exhibits submitted show that leather costs clearly predominate. Moreover, a comparison of the relative quantities of the leather and textile present will show that leather imparts the essential character.

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Specifically, in regard to style 145, the total leather stated to be therein amounts to 502 square inches whereas the fabric portion comprises only 240.25 square inches. In the case of style EG-155, the textile portions are said to amount to only 120.125 inches as compared to a total leather area of 617.5 inches.

The Explanatory Notes for GRI 3(b), HTSUSA, state:

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 . . . its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Although a determination of essential character of the outer surface of the portfolios cannot be based solely on a physical measurement of the component materials of the outer surface area, it is our observation that such a measurement is of paramount importance in determining whether the outer surface is leather or textile. Specifically, when one views style EG-155, the impression given by the outer surface area which is predominantly leather, is that of a leather article.

With respect to style 145, you indicate that leather predominates over textile fabric in total square inches of outer surface covered. It is to be noted that we do not include straps and handles as constituting part of the outer surface area of the portfolios. It is our position that only the outer surface of the main body of style 145 should be measured in arriving at a decision as to what material predominates in outer surface area. In this instance, we are not certain as to what material predominates in surface area covered although based on your measurements (excluding handles and straps) leather may still predominate

It is our view with respect to style 145 that the tapestry portions impart the essential character to the article. Although the leather portions impart visual and textile characteristics, it is our observation that the tapestry portions do likewise. The leather does impart strength; however, it is not distinctive to a portfolio in that similar bags can be functional and strong with imitation leather or 100 percent textile bodies. While a customer may be more attracted to genuine rather than imitation leather the feature which distinguishes style 145 from others is the tapestry panels. Further, greater weight must be accorded to the visual and

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tactile characteristics of the fabric in conjunction with the fact that the fabric is intended to make the article distinct and provides a selling point. With style 145, it is the tapestry that is intended to attract the customers. Otherwise, the customer could purchase any other similar quality leather bag which would have the same attributes of the leather contained herein.

We do not agree with your conclusion that material cost considerations support the position that the styles possess the essential character of leather. While costs in some circumstances may be a factor in determining essential character, they have little or no impact in this instance on determining essential character.

HOLDING:

It is our position that leather imparts the essential character to style EG-155. Consequently, it is classifiable under subheading 4202.12.0030, HTSUSA, as trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, and similar containers, with outer surface of leather and dutiable at the rate of 8 percent ad valorem.

It is our position with respect to style 145 that textile material imparts its essential character. Consequently, style 145 is classifiable under subheading 4202.12.8030, HTSUSA, as attache cases, brief cases, school satchels and similar containers, with outer surface of textile materials, other, of man-made fibers with duty at the rate of 20 percent ad valorem. The applicable textile category is 670.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc: AD NY Seaport
1cc: Department of Commerce
1cc: Kevin Gorman, NY Seaport
1cc: John Durant
1cc: CITA
DFCahill:jaj:1/30/89 gc/3/6/89 rt3/8/89