CLA-2-40:OT:RR:NC:N4:421
Mr. John S. Wink
Novel Ideas, Inc.
4201 Morning Breeze Court
Tampa, FL 33619
RE: The tariff classification of landscape edging from China
Dear Mr. Wink:
In your letter dated April 27, 2009, you requested a tariff classification ruling.
The sample submitted with your request is a length of landscape edging. It is designed to be used as a barrier, e.g., around trees or between flower beds and lawns. It is intended for use in both residential and commercial applications. The edging will be secured to the ground with landscape spikes. The spikes are not imported with the edging, but the edging incorporates holes or channels to accommodate the spikes. In the condition as imported the edging will measure 4 feet in length. At its cross-section, the edging measures approximately 5 inches in height and 4 inches in depth.
You suggest classification in heading 4003 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for reclaimed rubber in primary forms or in plates, sheets or strip. Although the material from which the edging is molded is reclaimed from tire rubber, heading 4003 is limited to articles in certain forms or shapes. Your product is molded to form a shaped edging piece which is then further worked with holes to accommodate spikes. This form does not meet the requirements for classification in heading 4003.
The applicable subheading for the landscape edging will be 4016.99.6050, HTSUS, which provides for other articles of vulcanized rubber other than hard rubber, other. The rate of duty will be 2.5 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
You inquire about the country of origin marking. You indicate that the manufacturer will mold the country of origin into the bottom of the product, and you have demonstrated this by impressing the word “China” in letters almost one inch in height in the bottom of the edging sample.
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.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
As provided in section 134.41(b), Customs Regulations (19 C.F.R. 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. In HQ 733940, dated October 24, 1991, Customs Headquarters described certain factors that need to be considered in determining if the country of origin marking on an article is conspicuous within the meaning of 19 C.F.R. 134.41 and 19 U.S.C. 1304. Among the factors that should be considered are the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears and whether it is in contrasting letters to the background. No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuousness requirement of 19 C.F.R. 134.41 and 19 U.S.C. 1304. Instead, it is the combination of these factors that determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.
In applying these factors to the sample marking, we find that, while the marking is not in a contrasting color, the size of the marking, 1inch high and 4 inches in width, is large enough so that it is apparent upon a casual examination. However, we caution that even at this size, the present level of conspicuousness is at a minimal level because of the lack of contrast, particularly against the rough surface of the material. We suggest that the marking be in contrasting color. In that case the marking need not be as large to meet the required level of conspicuousness.
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
National Commodity Specialist Division