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HQ 958309




December 19, 1995

CLA-2 RR:TC:FC 958309 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9890

Mr. James S. O'Kelly
Attorney at Law
Barnes, Richardson and Colburn
475 Park Avenue South
New York, NY 10016

RE: PVC Protective Sleeves

Dear Mr. O'Kelly:

This is reference to your request for July 21, 1995, for a binding ruling on a product you describe as vinyl chloride resin perforated tubing from Japan. You provided a sample of the product.

FACTS:

The product under consideration is a protective covering for automotive fuel system hoses. It is made of polyvinyl chloride plastic, is flexible, perforated, and is not reinforced with any other material. The perforations consist of 2 double rows of 3/8" holes along the length of the sleeve. The sleeves are used as a protective covering for automotive fuel system hoses. Counsel states that the article, in addition to affording protection to the fuel system hose, helps contain fuel fumes and prevent fuel drips from permeating through the fuel line. It is stated that the article is also suitable for non-automotive uses.

ISSUE:

Does the product under consideration come within the parameters of the expression "tubes, pipes and hoses" as defined in Legal Note 8 to Chapter 39, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

The inside diameter of the product sample furnished with the ruling request is 1/2 inch. It is designed to accommodate a fuel system hose with an outside diameter of approximately the same size. The sample product has 2 double rows of 3/8" holes on opposite sides of its length which appear to be designed to provide flexibility while protecting the fuel system hose.

In examining the product it appears that its stated ability to contain fuel fumes and prevent fuel drips from permeating the fuel line is related to its ability to keep the fuel system hose in a semi-rigid state and to thereby limit its flexing. We note that the size and quantity of the holes in the product would not permit it to serve as a tube for the transmission of fuel or any other liquid.

Counsel request classification in subheading 3917.32.6010, HTSUSA, noting that the product is a perforated plastic tube as per an example in Legal Note 8 to Chapter 39, HTSUSA. Counsel proffers an argument that the phrase "of a kind generally used for conveying, conducting or distributing gases or liquids..." indicates that those functions are not a prerequisite for all items classifiable in the above subheading.

We disagree with counsel's conclusion. The referenced legal note specifically states that the expression "tubes, pipes and hoses" means hollow products,..., of a kind generally used for conveying, conducting or distributing gases or liquids." It is not until we get to the examples that perforated tubes are noted. We believe that such example refers to items such as garden soaker hosing which, although having pinholes which permit it to delivery water to a garden, etc., conveys water along it entire length.

We believe that the term "generally" in the legal note merely indicates that the tube need not be used for conveying liquids and gases but that it is capable of being used for such
purpose. We do not believe that a term used in connection with an example of the product covered can be expanded to, in effect, negate the basic requirement of a definition, i.e., the ability to convey, conduct or distribute.

While the legal note also covers lay-flat tubing such as sausage casings, that term does not describe the instant product.

Counsel references certain Customs rulings in support of its position that tubing which is designed for protective purposes and does not have the capability to convey, conduct or distribute gases or liquids, is classifiable in subheading 3917.32.6010, HTSUSA. We disagree with that position. Only tubing, pipes and hoses with those capabilities or lay-flat tubing is therein classifiable. We, therefore, are presently reviewing the rulings referenced by counsel, and, insofar as any of those rulings present a conflicting holding, we will modify it pursuant to section 625(c)(1) of the Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L 103-182, 107 Stat. 2057).

HOLDING:

Polyvinyl chloride sleeves (tubing) which is flexible, perforated, is not reinforced with any other material and is designed to fit over a fuel system hose to protect such hose but is not capable of conveying, conducting or distributing gases or liquids, is classifiable in the provision for other articles of plastics, other, in subheading 3926.90.9890, HTSUSA. Products so classifiable are subject to a general rate of duty of 5.3 percent ad valorem.

Sincerely,

John Durant, Director
Tariff Classification

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