Classification of an umbrella food cover

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