HQ 085373: Classification of an umbrella food cover

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 085373

                        December 21, 1989

CLA-2 CO:R:C:G HQ 085373  WAW

CATEGORY:  Classification

TARIFF NO.:  6304.91.0040

Mr. Larry Dishart
Westwood International
2274 Davis Avenue
Hayward, CA  94545-1114

RE:  Classification of an umbrella food cover

Dear Mr. Dishart:

     This ruling is in response to your letter of August 16,
1989, requesting the tariff classification of an umbrella food
cover under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).  A sample was submitted with your request.

FACTS:

     The merchandise at issue is an umbrella food cover
consisting of a polyethelene knit fabric, four metal umbrella-
type ribs and a plastic top with a locking pin and pull cord.
The article resembles an umbrella when opened and is designed to
protect food at picnics, parties and cookouts from flies and
other insects.  The food covers will be imported from Taiwan and
Hong Kong.

ISSUE:

     Whether the subject food cover is classifiable under
subheading 6304.91.0040, HTSUSA?

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.  Since there is
no single heading which describes the subject merchandise,
classification cannot be determined by application of GRI 1.

     GRI 2(a) refers to incomplete or unfinished articles.  This
merchandise is neither incomplete nor unfinished; therefore, the
item is not classifiable according to GRI 2(a).  GRI 2(b) states
that goods consisting of more than one material or substance are
classifiable according to GRI 3.  Here, the sample merchandise
consists of three different components which fall under different
headings in the Nomenclature; thus, the item is not properly
classifiable according to GRI 2(b) and GRI 3 becomes applicable.

     GRI 3 provides for goods that are prima facie classifiable
under two or more headings.  Applying GRI 3(a), we must treat the
headings as equally specific since they refer to only part of the
goods to be classified.  Since the subject merchandise is not
classifiable according to GRI 3(a), GRI 3(b) becomes relevant.
GRI 3(b) provides the following:

     (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 to the HTSUSA constitute the official
interpretation of the tariff at the international level.
Explanatory Note VIII to GRI 3(b) provides:

     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.

Furthermore, essential character has been construed to mean the
attribute which strongly marks or serves to distinguish what an
article is; in other words, that which is indispensable to the
structure, core or condition of the article.

     In your letter, you argue that the item at issue should be
classified under subheading 6307.90.9050, HTSUSA, which provides
for "other made up articles."  Based on the utility value of the
umbrella food cover, it closely resembles a mosquito net, which
is an article specifically included in the Explanatory Notes
under heading 6304, HTSUSA.  Moreover, HRL 081827, dated June 6,
1988, ruled that these types of food coverings are properly
classifiable under heading 6304, HTSUSA.  Thus, it is Customs
position that subheading 6304.91.0040, HTSUSA, more accurately
describes the subject merchandise and is more appropriate than
subheading 6307.90.9050, HTSUSA, which is merely a catch-all
provision for textile articles not more specifically provided for
elsewhere the in the Nomenclature.

     Based on the foregoing analysis, it is Customs position that
the polyethelene knit fabric, which is the material forming the
protective surface of the umbrella-shaped food cover, constitutes
the most distinctive characteristic of the article.  Furthermore,
it is the knit fabric which is indispensable to the product's
designated use as a protective covering for food.  Thus, since
the polyethelene netting constitutes the essential character of
the subject merchandise, classification is proper under
subheading 6304.91.0040, HTSUSA, which provides for other
furnishing articles, excluding those of heading 9404: other: of
man-made fibers.

HOLDING:

     In the instant case, the umbrella food covering is
classifiable under subheading 6304.91.0040, HTSUSA.  The rate of
duty is 11.5% ad valorem.  In addition, the applicable textile
and apparel category is 666.

     The designated textile and apparel category may be
subdivided into parts.  If so, the visa and quota requirements
applicable to the subject merchandise may be affected.  Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available, we
suggest you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at your local Customs office.

     Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.

                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division