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HQ 957611




August 1, 1995

CLA-2 R:C:M 957611 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.95

District Director
U.S. Customs Service
P.O. Box 619050
1205 Royal Lane
DFW Airport, TX 75261-0950

RE: Protest 5501-94-100371; Wire Seals; HQs 951279, 951976, and 950886; Chapter 39, Note 1; Explanatory Note 39.10; Heading 3910.10.00; 4016.99.60; 3926.90.45

Dear District Director:

The following is our decision regarding Protest 5501-94-100371 concerning your action in classifying and assessing duty on wire seals under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of blue (item no. 002-1045) and white (item no. 002-1046) wire seals, both made of silicon elastomer, which are components in automobile wiring harnesses. The blue wire seal is crimped onto an insulated wire and metal terminal, and then inserted in the back of an insulating fitting (connector). The white wire seal is inserted into otherwise empty terminal cavities in the back of an insulating fitting (connector). The function of both types of wire seals is to protect the inside of the insulator fittings from water, moisture, dirt, and other invasive contaminants.

The wire seals were entered under subheading 3926.90.45, HTSUS, as gaskets, washers and other seals, of plastics. The entries were liquidated on August 12, 19, and 26, and September 2, 1994, under subheading 4016.99.60, HTSUS, as other articles of vulcanized rubber. The protest was timely filed on November 9, 1994.

ISSUE:

Whether the wire seals are classifiable under subheading 4016.99.60, as other articles of vulcanized rubber, under subheading 3926.90.45, HTSUS, as gaskets, washers and other seals, of plastics, or under subheading 3926.90.95, HTSUS, as other articles of plastics.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's).
GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The subheadings under consideration are as follows:

4016.99.60: [o]ther articles of vulcanized rubber other than hard rubber: [o]ther: [o]ther: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.3 percent ad valorem.

3926.90.45: [o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [g]askets, washers and other seals.

The general, column one rate of duty for goods classifiable under this provision is 3.5 percent ad valorem.

3926.90.95: [o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.3 percent ad valorem.

Chapter 39, note 1, HTSUS, states:

1. Throughout the tariff schedule the expression "plastics" means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.

Heading 3910.10.00, HTSUS, provides for: "[s]ilicones in primary forms." In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 39.10 (p. 564) states that:

. . . The products include silicone oils, greases, resins and elastomers. (emphasis supplied).

It is now understood by all parties that the wire seals, made of silicone elastomer are classifiable under heading 3926, HTSUS, as articles of plastics. Consequently, classification of the merchandise under subheading 4016.99.60, HTSUS, as other articles of vulcanized rubber, is precluded.

In HQ 951279, dated July 22, 1992, in classifying rubber boot seal kits under subheading 4016.99.50, HTSUS (the precursor to subheading 4016.99.60, HTSUS), we stated that:

[Industry standards describe] a boot seal as a flexible member which prevents the escape of lubricant from or entry of foreign matter into the universal joint. In discussions with industry representatives, we learned that the most important property of the boot seal is its dynamic characteristics, i.e., the fact that it can bend, twist, etc., in connection with the movement of the CV joint which it covers. . . It is the dynamic aspect of a boot seal, which meet industry standards, that causes it to differ from a normal seal which fits between two non-flexible members, does not flex and is inside the members being joined.

It is our position that the subject wire seals are similar in function to the merchandise in HQ 951279, and, because their principal function is to prevent the entry of invasive matter and protect the insulator fittings from such matter, the wire seals are not classifiable under subheading 3926.90.45, HTSUS, as gaskets, washers, and other seals, of plastics, but are classifiable under subheading 3926.90.95, HTSUS, as other articles of plastics, as they are not described elsewhere under the HTSUS. See also HQ 951976, dated July 22, 1992, for a decision similar to the one in HQ 951279.

For classification purposes, for the wire seals to be classifiable as seals, their principal function must be to prevent the leakage of matter, not to prevent the entry of invasive matter. The protestant cites the holding in HQ 950886, dated April 3, 1992, as dispositive of the classification of the wire seals as seals under subheading 3926.90.45, HTSUS. In that ruling, we held plastic "O"-rings to be classifiable under subheading 3926.90.45, HTSUS. However, we stated that:

[t]he subject "O"-rings are geared to . . . preventing the leakage of matter.

Because the principal function of the "O"-rings in HQ 950886 was to prevent the leakage of matter, we held them to be classifiable under subheading 3926.90.45, HTSUS. The "O"-rings are distinguishable from the subject wire seals, as the principal function of the wire seals is to protect the insulator fittings from invasive matter, not to prevent the leakage of matter.

HOLDING:

The blue and white wire seals are classifiable under subheading 3926.90.95, HTSUS, as other articles of plastics.

Because the rate of duty under the classification indicated above is the same as the liquidated rate, you should DENY the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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