HQ 951986: Decision on application for further review of protest no. 3801-2-100761; classification of a leather and polyester/ cotton blend fabric bandana; neither leather nor fabric components impart essential character; GRI 3(c); heading 6214.30.0000, HTSUSA; imports may receive a reduced rate of duty under the CFTA; Form 353; extension of liquidation pursuant to 19 CFR 159.12(b); 19 U.S.C. 1504(b); CF 28.

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 951986


                        October 28, 1992

CLA-2 CO:R:C:T 951986 SK

CATEGORY: Classification/Entry

TARIFF NO.: 6214.30.0000

Assistant District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Decision on application for further review of protest no.
    3801-2-100761; classification of a leather and polyester/
    cotton blend fabric bandana; neither leather nor fabric 
    components impart essential character; GRI 3(c); heading
    6214.30.0000, HTSUSA; imports may receive a reduced rate
    of duty under the CFTA; Form 353; extension of liquidation
    pursuant to 19 CFR 159.12(b); 19 U.S.C. 1504(b); CF 28.

Dear Sir:

     This is a decision on application for further review of a
protest timely filed by John V. Carr & Son, Inc., dated March 4,
1992, against your decision on the classification of textile and
leather bandanas.  A sample was submitted for Customs 
examination.

FACTS:

     The article at issue is a bandana constructed of a 50/50
polyester/cotton blend fabric on one side, and 100 percent
finished cowhide leather on the reverse side.  The fabric side is
silkscreened and painted with a scene of Mt. Rushmore and bears
the legend, "1990 Sturgis South Dakota 50th Anniversary." 
Velcro-like strips are attached to the narrowest two points of
the article which allow the bandana to be worn on either side and
provide a means of closure as the leather component prevents the
article from being tied.






                            -2-

     The bandanas were entered on August 9, 1990.  In response to
a request for additional information on a CF 28, a sample was
submitted to the District Director on July 22, 1991.  In the
meantime, on April 20, 1991, a notice of extension of liquidation
had been issued.  On October 8, 1991, a Notice of Action (CF 29)
was issued indicating a change in classification of the
merchandise.  The entry was then liquidated at the proposed rate
and classification, indicated on the CF 29, on December 13, 1991.

     Protestant contends that the entry should have been deemed
liquidated at the end of one year at the rate asserted at the
time of entry.  Protestant alleges that no notice of extension
was received by either the importer or the surety as required by
19 CFR 159.12(b).  Protestant asserts that the requested sample
was submitted to the District Director on July 26, 1991, more
than two months before the one-year time limit had expired. 
Therefore, there would have been no valid reason to cause the
liquidation to be extended.

     Protestant also asserts that the subject merchandise is
eligible for a reduced rate of duty under the United States-
Canada Free Trade Agreement (CFTA).

     We note that the Customs Form 6445, in the section
designated "District Director's Position", states that the
subject merchandise is correctly classifiable under subheading
4203.40.6000, HTSUSA.  This is a clerical error and should be
disregarded. 

ISSUES:

1) What is the proper classification of this article? 

2) Does this article qualify for preferential treatment under the
   U.S.- Canada Free Trade Agreement?

3) Whether the subject entry was deemed liquidated by entry of   
   law? 

4) Whether a proper notice of extension was issued?






                             -3-

LAW AND ANALYSIS:

CLASSIFICATION:

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

     The subject merchandise is a bandana comprised of a printed
textile side and a leather side.  As the two components are 
classifiable under different headings in the Nomenclature,
heading 6214, HTSUSA, which provides for shawls, scarfs,
mufflers, mantillas, veils and the like, and heading 4203,
HTSUSA, which provides for articles of apparel and clothing
accessories of leather, no single heading covers the subject
merchandise in its entirety and classification cannot be
accomplished by application of GRI 1 alone.  GRI 3 provides the
relevant analysis in this instance.

     When, by application of rule 2(b) or for any other 
     reason, goods are, prima facie, classifiable under 
     two or more headings, classification shall be affected
     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 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 or precise description of the goods.

     As noted supra, classification of the article at issue is
possible under two equally specific provisions in the
Nomenclature, and GRI 3(b) applies as follows:

     (b)  ... composite goods consisting of different materials 
          or made up of different components... 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.





                              -4-

     Explanatory Note VIII to GRI 3(b) states that:

     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.

     With regard to the article at issue, it is impossible to
determine which of its components determines this article's
essential character: the leather which is the costliest component 
and comprises the bulk of this article's weight, or the printed
textile component which, although of lower value, bears a
commemorative legend which may very well provide the motivating
impetus for the purchase of this article.  This article is not
intended to be worn with only the leather or the textile side 
showing.  The article is intended to be worn with both sides
showing as is evidenced by the velcro-like strips which create a
reversible bandana.  Both sides contribute equally to the
identity of this article and neither side imparts the bandana's
essential character.

     GRI 3(c) sets forth that when goods cannot be classified by
rrreference to 3(a) or 3(b), they shall be classified under the
heading which occurs last in numerical order among those which
equally merit consideration.  Accordingly, the article at issue
is properly classified under heading 6214, HTSUSA, the heading
which occurs last in numerical order between the two relevant
headings set forth above.

REDUCED RATE OF DUTY UNDER THE CFTA

     As attested to in Customs Form 353, submitted by the
protestant to your office, the goods the subject of this protest
have been designated as products wholly the production of Canada
or the United States.  Accordingly, these articles are eligible
for a reduced rate of duty under the CFTA.







                              -5-

VALIDITY OF EXTENSION OF LIQUIDATION AND FORM OF NOTICE

     Liquidation of an entry of merchandise constitutes the final
computation by Customs of all duties accruing on that entry.
American Permac, Inc. v. United States, 10 CIT 535, 537, 642 F.
Supp. 1187, 1190 (1986).  Under 19 U.S.C. section 1504, Customs
is bound by certain time limits during which liquidation must
occur.  If Customs fails to liquidate an entry within one year
from the date of entry or final withdrawal from warehouse, that
entry is deemed liquidated at the rate of duty, value, quantity
and amount of duties asserted at the time of entry by the
importer, his consignee, or agent.  Customs is permitted to
extend the one year period, under 19 U.S.C. section 1504(b) in
certain circumstances:

     (1)  if additional information is needed to classify the
          goods;

     (2)  if liquidation is suspended by statute or court order;
          or

     (3)  the importer, consignee, or his agent requests an
          extension.

Customs must provide the importer with notice of the extension. 
Any entry not liquidated at the expiration of four years from the
date of entry or withdrawal from warehouse is deemed liquidated 
at the rate of duty, value, quantity, and amount of duty asserted
at the time of entry, by the importer, unless liquidation
continues to be suspended.

     Regarding the subject entry, it is clear that Customs was
authorized to extend liquidation under 19 U.S.C. section 1504(b).
The Request for Information (CF28) was issued to obtain
information from the importer relative to the correct
classification of the merchandise.  The issue of whether an
extension for insufficient information is justified under 19
U.S.C. section 1504(b)(1) was addressed by the Court of
International Trade in Detroit Zoological Soc'y v. United States,
10 CIT 133, 630 F. Supp. 1350 (1986).  The court held that the
term "information" as used in 19 U.S.C. section 1504(b)(1),
"should be construed to include whatever is reasonably necessary
for proper appraisement or classification of the merchandise
involved."  10 CIT at 138, 630 F.Supp. at 1356.  Thus, it is
clear that liquidation of the subject entry was properly







 

                           -6-

extended.  Protestant's contention that the entry was deemed
liquidated on the one year anniversary because the relevant
sample was submitted more than two months before the one year
anniversary is without basis.  Once a notice of extension is
issued the extension is valid for one year.  Therefore, Customs
had one year from the date the notice of extension was issued
(April 20, 1991) within which to liquidate the entry.

     Having determined that extension of the subject entry was
proper, there remains protestant's contention that it never
received the notice of extension.  Customs must give notice of
the extension of liquidation to the importer of record in the
form and manner prescribed in the regulations.  The regulations
provide that Customs shall give notice on Customs Form 4333-A,
and the notice shall state the reason for the extension.  19 CFR
159.12(b).  Failure to provide such notice results in liquidation
by operation of law.  Enron Oil Trading and Transportation Co. v.
United States, 15 CIT ___, Slip. Op. 91-91 at 3 (Sept. 27, 1991)
(citing Pagoda Trading Co. v. United States, 9 CIT 407, 411, 617
F. Supp. 96, 99 (1985), aff'd, 804 F.2d 665 (Fed. Cir. 1986).

     Government officials are entitled to a presumption that
their duties are performed in the manner required by law.  Star
Sales & Distributing Corp. v. United States, 10 CIT 709, 710, 663
F. Supp. 1127, 1129 (1986); see Enron Oil Trading, 15 CIT at ___,
Slip. Op. 91-91 at 4.  The presumption may be rebutted by
evidence indicating that notice was not received.  In the instant
protest, protestant makes a naked assertion in its protest that
no notice of extension was received by either the importer or the
surety.  Protestant did not provide any evidence to support its
assertion.  Thus, protestant has failed to rebut the presumption
that proper notice was given.  See International Cargo & Surety
Insurance Co. v. United States, 15 CIT ___, Slip. Op. 91-99 at
28-29 (November 15, 1991). 
                                
HOLDING:
     
     The subject merchandise is properly classifiable under
subheading 6214.30.0000, HTSUSA, which provides for shawls,
scarves, mufflers, mantillas, veils and the like made of
synthetic fibers.  Products of Canada, within this provision of
the HTSUSA, are eligible for a reduced rate of duty for purposes
of the United States-Canada Free-Trade Agreement Implementation
Act of 1988.  The reduced rate of duty is 6.3 percent ad valorem
and the applicable textile quota category is 659. 






                            -7-

     The subject entry did not liquidate by operation of law
because liquidation was properly extended and Customs did, in
fact, liquidate the entry within the additional year granted by
the extension.  Additionally, protestant has failed to rebut the
presumption that proper notice of extension of liquidation was
given. 

     As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
entered, you are instructed to deny the protest in full.  A copy
of this decision should be furnished to the protestant with the
Form 19 notice of action.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division