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HQ 081827


June 6, 1988

CLA-2 CO:R:C:G 081827 LS 826921

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.93.0000

Mr. David E. Vines
B and E Sales Co.
200 East Long Lake Road, Suite 200
Bloomfield Heights, Michigan 48303

RE: Tariff classification of a food cover (your reference no. 710258)

Dear Mr. Vines:

This is in response to your letter of October 2, 1987, in which you requested a classification ruling on a "fold away food cover" to be imported from Taiwan. A ruling under the Tariff Schedules of the United States (TSUS) has already been forwarded to you by the Area Director of New York Seaport. This ruling will therefore only address classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The sample submitted is a food cover consisting of a leno weave nylon fabric, four metal umbrella type ribs and a plastic top with a locking pin and pull cord. The article, when opened, resembles a small umbrella which is used to protect food at picnics, parties, and cook-outs from flies and other insect pests.

ISSUE:

Whether the subject food cover is classifiable in item 6304.93.0000?

LAW AND ANALYSIS:

The applicable General Rule of Interpretation, Rule 3(b), provides:

(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.

Explanatory Note (VIII) to Rule 3(b) provides that the essential character may 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." Essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is. United China & Glass Co. v. United States, 61 Cust Ct. 386, C.D. 3637 (1968). As noted in that case, essential character is defined as "that which is indispensable to the structure, core or condition of the article, i.e., what it is." 61 Cust Ct. at 389.

It is determined that the nylon netting, which is the material forming the protective surface of the umbrella-shaped food cover, constitutes the most distinctive characteristic of the article, i.e., it is the component which is indispensable to the product's designated use.

HOLDING:

In view of the foregoing, the applicable HTSUSA provision is subheading 6304.93.0000, which provides for "Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of synthetic fibers," dutiable at the rate of 10.6 percent ad valorem. The applicable textile and apparel category is 666. This classification represents the present position of the Customs Service regarding the dutiable status of the merchandise under the HTSUSA. If there are changes before enactment this advice may not continue to be applicable.

Sincerely,

John Durant, Director

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