CLA-2 CO:R:C:G 081374 c

Stephen S. Weiser, Esq.
Siegel, Mandell & Davidson, P.C.
Counsellors at Law
One Whitehall Street
New York, New York 10004

RE: Tariff classification of a women's tote bag and a knapsack manufactured in Korea

Dear Mr. Weiser:

In a letter dated November 18, 1987, you inquired as to the tariff classification under the proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a women's tote bag and a knapsack. Samples were submitted for examination.

FACTS:

The sample designated as style 44571 is a women's tote bag which measures approximately 17 inches by 12 inches by 4 inches. It has a cotton body with a strip of leather running across the full length of the front of the article near the handle. This leather strip, which is approximately 17 inches in length, is tapered and measures approximately 1-1/2 inches in width at its narrowest (the ends) and approximately 3-1/2 inches in width at its widest (the center). This bag also possesses double leather handles each of which is approximately 1/2 inch wide and 32 inches in length (the leather measurement takes into account the pieces of leather connected to the handles which anchor the handles to the body of the bag).

The sample designated as style 47851 is a knapsack which has a cotton fabric body. The opening of the knapsack is surrounded by leather piping and may be tightened by means of a leather drawstring which measures approximately 40 inches in length and 7/16 inch in width. The opening of the knapsack is covered by a cotton flap with leather piping. The flap may be

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secured to the body of the knapsack by means of a leather "belt-type" closure. This closure measures approximately 5- 1/4 inches in length and 1 inch in width (extending to over 2 inches in width at its widest point on the flap, where a logo has been imprinted). Two outer pockets, which may also be closed by means of flaps, have been attached to the bottom portion of the front of the knapsack. The edges of the pockets and flaps have been reinforced by leather piping. A leather tab, approximately 3-1/2 inches long and 3/4 inch wide (widening to approximately 1-1/2 inches in width on the pocket's flap), appears on each of the flaps. This leather tab snaps onto a piece of leather (measuring approximately 3 inches by 1-1/4 inches) on the front of the pockets to secure the flaps in simulation of a "belt-type closure. The two shoulder straps on the rear of the knapsack are leather and are each approximately 1 inch wide and 32 inches in length (each strap actually consists of two pieces of leather held together by a metal buckle). The straps are connected to additional pieces of leather (measuring approximately 2 inches by 1-1/2 inches) sewn into the bottom of the knapsack. The tops of the knapsack's straps are looped around a strip of leather (approximately 3/4 inch wide and 17 inches in length) which is attached to the rear of the knapsack in the shape of an upside down "U."

You claim that the "essential character" of the outer surfaces of the tote bag and knapsack is imparted by the leather components and, therefore, each of the items is properly classifiable under subheading 4202.91.0030, HTSUSA, as travel, sports and similar bags, with outer surface of leather, of composition leather, or of patent leather. The rate of duty for this provision is 6.8 percent ad valorem.

ISSUE:

Whether the essential character of the outer surfaces of the tote bag and knapsack is imparted by their leather components.

LAW AND ANALYSIS:

General Rule of Interpretation (GRI) 3(b), HTSUSA, provides as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components and goods put up in sets for retail sale, which

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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 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.

You have expressed concern that Customs will determine "essential character" of the outer surface based solely on a physical measurement of the surface area of the component materials comprising the outer surface area. Thus, if a textile material predominates in area over each other single outer surface material, the article will be considered to have an outer surface of textile materials for tariff purposes.

In Headquarters Ruling Letter (HRL) 081165 PR dated October 27, 1987, this office took the position that with respect to luggage and related products, a determination of "essential character" can be based on a measurement of the material of the outer surface. Specifically, an item of luggage or a related product would be considered as having an outer surface of textile materials if the textile material predominates in area over each other single outer surface material.

It is now our position that a determination of "essential character" of the outer surface of luggage and related products cannot be based solely on the material contained therein which predominates by area over any other single material. Such a result would be contrary to the Explanatory Notes for GRI 3(b), supra, which sets forth additional criteria for determining "essential character." Consequently, HRL 081165 PR dated October 27, 1987, is modified to reflect this view.

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In support of your 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 purpose 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 material is the distinctive visual and tactile quality of the polyurethane "skin." 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 knapsack and tote bags for the following reasons:

(1) leather is integral to the construction and design of the articles as it is used on all critical parts where flexibility and durability are essential;

(2) the shoulder straps on the knapsack through their positioning on the back of the article may be said to be the distinguishing feature of the article;

(3) the importance of the handles on the tote bag is underscored by the fact that consumers will not purchase such an article without handles, as the tote bag then would be too susceptible to loss or theft;

(4) leather shapes both articles more effectively than cotton fabric alone,

(5) leather is vital to the effective use of the bags, i.e., their ability to carry and store items during travel;

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(6) leather is invaluable from a marketability standpoint. Consumers perceive a distinct difference between all cotton articles and similar articles with leather trimming and/or leather straps or handles, unquestionably pre- ferring the appearance of article with leather to those without;

(7) the fact that leather is in chief value, although no longer dispositive for classification purposes under the Harmonized System, militates toward a finding that leather rather than cotton imparts the essential character of the outer surfaces of the articles; and

(8) the value of the leather, in and of itself, attracts consumers to these particular articles rather than ones with far less (or no) leather.

Although a determination of "essential character" of the outer surface of luggage and related products 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 the "essential character" of this type of merchandise. Specifically, when viewing luggage and related products, the materials of the outer surfaces produce a visual impact which in many instances leaves little or no doubt as to what material gives the outer surfaces their essential character.

We note that the use of leather in the knapsack and tote bag is confined to use as a trim, as handles or straps for carrying and as closures for the main compartment and pockets of the knapsack. When one views the samples the impression given by the exterior surfaces, which are predominantly textile, is that of textile articles.

Although the leather portions might distinguish the knapsack and tote bag from other knapsacks and tote bags without leather, it is not enough to conclude that leather gives the surfaces of the articles their "essential character." For example, the claim that an article is "trimmed with leather" does not indicate that leather constitutes the "essential character" a customer is seeking. To do so would negate the usual method of advertising such as

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"linen trimmed with leather" or "canvas trimmed with leather" or "jute trimmed with leather." The one common denominator when a customer purchases a bag having both fabric and leather is that the customer desires the fabric look. It is our experience that when tapestry is combined with leather, the tapestry is the feature sought after.

In this instance the use of leather on the knapsack and tote bag is confined to use as trim, as handles or straps for carrying, and as closures for the main compartment and pockets of the knapsack. When one views the samples, the impression given by the exterior surfaces is that of a textile article. The presence of the leather for the purposes stated above is subsidiary to the presence of the textile material which constitutes the major portion of the tote bag and knapsack. Thus, the textile material here supplies the distinctive feature of the bags and is that by which the bags are what they fundamentally are.

The Explanatory Notes to GRI 3(b) state that value may be a factor in determining "essential character." Here it is claimed that the value of the leather, in and of itself, attracts customers to these particular articles rather than ones with far less or no leather. It is our view that the value of the leather here has little or no impact on determining "essential character." The customer is not necessarily attracted to the leather components of the articles alone, but rather to the combination of leather and textile.

You suggest that confirmation of your view that the articles are classifiable as bags with outer surface of leather under the HTSUSA would be in accord with the President's intent that the Harmonized System be duty neutral.

This particular argument is irrelevant in this instance. The President's guidelines for the conversion from the Tariff Schedules of the United States to the Harmonized System do not mandate that every article be subjected to the same rate of duty under the Harmonized System as it was under the tariff schedules.

HOLDING:

Although leather provides esthetic and functional qualities to these products, the "essential character" of the outer surfaces is supplied by the textile material.

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The knapsack and tote bag are classifiable under subheading 4202.92.1500, HTSUSA, as travel, sports and similar bags with outer surface of textile materials of vegetable fibers and not of pile or tufted construction: of cotton with duty at the rate of 7.2 percent ad valorem. The applicable textile category is 369.

This classification represents the current position of the Customs Service regarding the dutiable status of the merchandise under the proposed HTSUSA. If there are changes before enactment, this advice may not continue to be applicable.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc: A.D., NY Seaport
1cc Commercial Compliance
2cc: Chief, CIE Branch
1cc: John Durant
1cc: Kevin Gorman, NY Seaport
1cc: Commerce
CO:R:C:G:DCAHILL:lw 8/2/88