HQ 086845: Decision on Application for Further Review of Protest No. 3004-89-000133

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 086845

                          May 23, 1990




CLA-2  CO:R:C:G   086845  CC

CATEGORY:  Classification

TARIFF NO.: 6304.93.0000; 6304.99.6020

District Director of Customs
909 First Ave., Room 2039
Seattle, WA 98174

RE:  Decision on Application for Further Review of Protest No.
     3004-89-000133

Dear Sir:

     This protest was filed against your Notice of Redelivery,
dated August 24, 1989, against three entries at Blaine,
Washington.  These entries involved the importation of potholders
produced in Taiwan.

FACTS:

     The merchandise at issue is a square-shaped potholder that
measures approximately 6 inches by 6 inches.  The back of the
potholder is made of woven red fabric.  The front is made of
woven white fabric that is decorated with the inscriptions
"Elizabeth's Kitchen" and "Happy is the home that welcomes a
friend," and with designs representing houses, grapes, and wheat.
The potholder contains an internal layer of polyester batting.  A
loop with a wooden circle is attached to one corner.

     According to a Customs laboratory report, dated June 8,
1989, the composition, by weight, of the potholder is the
following:








                              Wt. (g)        % by Wt.

     Red print fabric           7.2             31
       (cotton)

     White print fabric
       (polyester/rayon)        5.2             22

     Polyester batting          8.2             35

     Wooden ring                2.6             11

     Label (man-made fiber)     0.2              1

     Based on the above-mentioned laboratory report it was
determined that the potholder was classifiable under subheading
6304.93.0000 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for other furnishing
articles, other, not knitted or crocheted, of synthetic fibers.
As a result you issued CF 4667 on August 24, 1989, in the absence
of a textile category visa in category 666, stating that the
imported potholders at issue must be redelivered.  It is your
position that all materials of the article must be taken into
consideration when determining what material predominates by
weight.  Since the batting, which is made of polyester,
predominates by weight for all of the materials of the potholder,
it is classifiable as of synthetic fibers under subheading
6304.93.0000.  The importer maintains that only the outer shell
should be considered when determining which material predominates
by weight.  The importer claims that the outer shell is made of
55 percent cotton and 45 percent polyester fabric (presumably
the composition of both the red and white fabric combined).  He
therefore concludes that the potholder is classifiable under
subheading 6304.92.0000, HTSUSA, which provides for other
furnishing articles, other, not knitted or crocheted, of cotton.

ISSUE:

     Which material or materials determine classification of the
potholder at issue at the subheading level in Heading 6304,
HTSUSA?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.



     In HRL 084854, dated June 27, 1989, we decided that textile
potholders were classified in Heading 6304, HTSUSA.  Therefore,
the potholder at issue is classifiable in Heading 6304.

     According to the laboratory analysis, the potholder at issue
is made of 4 basic materials,  woven cotton fabric (the red
fabric), a woven blend of polyester and rayon (the white
fabric), polyester batting, and a wooden ring.  Therefore, the
potholder is classifiable under more than one subheading within
Heading 6304, and classification at the subheading level is not
possible under GRI 1.

     GRI 3 provides for classification of goods that are, prima
facie, classifiable under two or more headings.  GRI 3 also
applies to the subheading level since GRI 6 provides that
classification under subheadings is in accordance with the terms
of the subheadings and the GRI's, on the understanding that only
subheadings at the same level are comparable.

     GRI 3(b) provides that mixtures, composite goods consisting
of different materials or made up of different components, and
goods put up in sets for retail sale, shall be classified as if
they consisted of the material or component which gives them
their essential character (emphasis added).  According to the
Explanatory Notes, the official interpretation of the HTSUSA at
the international level, "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."

     Each of the three fabrics - the white fabric, the red
fabric, and the polyester batting - plays an important role in
relation to the potholder at issue.  The batting provides some
insulation.  The red fabric serves as the backing and provides
additional insulation and some decoration.  The white fabric
provides a substantial amount of decoration.  We do not believe
that any one of these three fabrics, by itself, imparts the
essential character to the potholder at issue.  Therefore,
classification at the subheading level is in accordance with GRI
3(c), which states that when goods cannot be classified by
reference to 3(b), they shall be classified under the heading
which occurs last in numerical order among those which equally
merit consideration.

     If the potholder at issue were classified as if it consisted
only of the red fabric, it would be classified under subheading
6304.92, HTSUSA, which provides for other furnishing articles,
other, not knitted or crocheted, of cotton.  If the potholder at
issue were classified as if it consisted only of the polyester
batting, it would be classified under subheading 6304.93, HTSUSA,

which provides for other furnishing articles, other, not knitted
or crocheted, of synthetic fibers.

     The white fabric is made of a blend of polyester and rayon,
according to the laboratory report.  Polyester is considered a
synthetic fiber; rayon is considered an artificial fiber.
Therefore, if the potholder at issue were classified as if it
consisted only of the white fabric, subheading Note 2 to Section
XI, which states the following, must be applied:

     (A)  Products of chapters 56 to 63 containing two or more
          textile materials are to be regarded as consisting
          wholly of that textile material which would be selected
          under note 2 to this section for the classification of
          a product of chapters 50 to 55 consisting of the same
          textile materials.

     (B)  For application of this rule:

          (a)  where appropriate, only the part which determines
               the classification under general interpretative
               rule 3 shall be taken into account (emphasis
               added).

     Note 2(A) to Section XI states that "goods classifiable in
chapters 50 to 55 or in Heading 5809 or 5902 and of a mixture of
two or more textile materials are to be classified as if
consisting wholly of that one textile material which predominates
by weight over each other single textile material."

     If the potholder at issue were classified according to the
white fabric and polyester predominates by weight in that fabric,
the applicable subheading would be 6304.93.  If rayon
predominates by weight in the white fabric, the applicable
subheading would be 6304.99, HTSUSA, which provides for other
furnishing articles, other, not knitted or crocheted, of other
textile materials.  Inasmuch as subheading 6304.99 occurs last
numerically among those that merit consideration, the potholder
at issue would be classified under this subheading.  If
polyester predominates by weight in the white fabric, subheading
6304.93. occurs last numerically among those that merit
consideration, and the potholder at issue is classified under
this subheading.

HOLDING:

     If polyester predominates by weight in the white fabric, the
potholder at issue is classified under subheading 6304.93.0000,
HTSUSA, which provides for other furnishing articles, other, not
knitted or crocheted, of synthetic fibers.  The rate of duty
would be 10.6 percent ad valorem, and the textile category would
be 666.  If rayon predominates by weight in the white fabric, the
potholder at issue is classified under subheading 6304.99.6020,
HTSUSA, which provides for other furnishing articles, other, not
knitted or crocheted, of other textile materials, other, other,
of artificial fibers.  The rate of duty would be 6.4 percent ad
valorem, and the textile category would be 666.

     The protest should be denied.  A copy of this decision
should be attached to the Form 19 Notice of Action to be sent to
the protestant.


                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division