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NY L88715




November 16, 2005

CLA-2-39:RR:NC:N2:221 L88715

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9880

Mr. Joe Hoffacker
Barthco Trade Consultants
7575 Holstein Avenue
Philadelphia, PA 19112

RE: The tariff classification of a floating hammock from China

Dear Mr. Hoffacker:

In your letter dated November 4, 2005, on behalf of K.B. Toys of Massachusetts, Inc., you requested a tariff classification ruling.

The sample submitted with your request is identified as a floating hammock, item #41557. It consists of ethylene vinyl acetate (EVA) foam head and leg rests, each measuring approximately 22 ½ inches by 9 ½ inches by 3 inches, encased within and joined together by a polyester open mesh shell that measures approximately 60 inches in total length. The hammock may be used in a swimming pool, lake or other still body of water. When the user lies in the water with the head resting on the headrest and the legs resting on the leg rest, the torso is suspended slightly below the water surface. According to the breakdown submitted with your request, the weight of the EVA foam is six times greater than the weight of the textile mesh and the value of the EVA foam is three times greater than the value of the textile mesh. In addition, the foam is the component that provides the buoyancy to the product, allowing it to float. The essential character of the product is imparted by the EVA foam components. The hammock is packed inside a zippered bag made of clear plastic sheeting with a textile carrying strap.

The sample is being returned as you requested.

The applicable subheading for the floating hammock will be 3926.90.9880, Harmonized Tariff Schedule of the United States (HTS), which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem.

The marketing illustration that is visible through the clear packaging bag depicts a woman floating on the hammock in a swimming pool. The printing beneath the swimmer reads “Manufactured for Blue Seal Pool Products, New York, NY.“ These words are printed in black ink inside a pink banner that contrasts with the blue water on the illustration. The words “Made in China” appear in smaller print on the right side of the picture, in black print against the blue pool water. This country of origin marking appears at a significant distance from the domestic address, in smaller size letters than the domestic address, and in print that is less conspicuous because there is less color contrast with the background color. The combination of these factors makes the country of origin significantly less conspicuous than the domestic address.

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.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

The marking on the submitted sample, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported float. The words “Made in China” should appear directly next to or directly below the domestic address, and should be in comparable size print.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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