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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

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