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NY B84408




April 21, 1997

CLA-2-40:RR:NC:SP:221 B84408

CATEGORY: CLASSIFICATION

TARIFF NO.: 4009.30.0000; 3917.39.0050

Mr. Philip Kassier
Superior Fire Hose Corp.
4701 C Stockholm Court
Charlotte, NC 28273

RE: The tariff classification and country of origin marking requirements for fire hose from France.

Dear Mr. Kassier:

In your letter dated April 9, 1997, you requested a tariff classification ruling.

The hose is made from a mixture of nitrile rubber and polyvinyl chloride (PVC) plastics. It contains an inner reinforcing layer of woven polyester fabric. The hose will be imported in lengths of 100 feet, without fittings, and will be used as fire hose. The hose is considered to be of synthetic rubber if the nitrile/PVC combination meets the stretch and recovery requirement as outlined by the definition of synthetic rubber in Chapter 40 note 4(a). This note defines synthetic rubber as applying to unsaturated synthetic substances which can be irreversibly transformed by vulcanization with sulfur into non-thermoplastic substances which, at a temperature between 18 and 29 degrees Celsius, will not break on being extended to three times their original length and will return, after being extended to twice their original length, within a period of 5 minutes, to a length not greater than 1 1/2 times their original length. If the nitrile/PVC combination does not meet this test, then the hose is considered to be of plastics for tariff classification purposes.

The applicable subheading for the nitrile/PVC hose, when it meets the stretch and recovery requirement of Chapter 40 note 4(a), will be 4009.30.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with or without their fittings, reinforced or otherwise combined only with textile materials, without fittings. The rate of duty will be 2.7 percent ad valorem.

The applicable subheading for the nitrile/PVC hose, when it does not meet the stretch and recovery requirement of Chapter 40 note 4(a), will be 3917.39.0050, HTS, which provides for tubes, pipes and hoses and fittings therefor, of plastics...other, other, other. The rate of duty will be 3.1 percent ad valorem.

You also request a ruling as to whether marking the cardboard box in which the hose will be shipped rather than marking the hose itself will satisfy the country of origin marking requirements, since the hose will be further processed after importation. In all cases, couplings will be attached and each hose will be pressure tested to assure that there are no leaks or imperfections in the finished product. In some cases, couplings will be attached to the full 100 foot length of hose. In other cases, the hose will be cut to shorter lengths before the couplings are attached.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. See, 19 CFR 134.35.

In this case, the imported hose is not substantially transformed as a result of the U.S. processing, and therefore the ultimate purchaser of the imported hose is the purchaser of the hose in its completed form. Accordingly, marking the container in which the hose is imported in lieu of marking the hose itself is not an acceptable country of origin marking.

Since the hose may be cut to shorter lengths, a single marking on a 100 foot length of hose is not sufficient to ensure that the ultimate purchaser of each of the completed hoses will be aware of the country of origin. It is the position of the Customs Service that imports of fire hose without couplings must be marked at 25 foot intervals. The marking may be applied by imprinting, stencilling or other method resulting in a marking sufficiently permanent to remain on the hose until it reaches the ultimate purchaser in the United States.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at 212-466-5580.

Sincerely,

Gwenn Klein Kirschner
Chief, Special Products Branch

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