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HQ 960601




March 17, 1998

CLA-2 RR:CR:GC 960601 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3916.90.3000; 3916.90.5000

Port Director of Customs
U.S. Customs Service
2350 N. Sam Houston Parkway East
Suite 1000
Houston, TX 77032

RE: Application for Further Review of Protest 5301-96-100431, dated September 18, 1996, Regarding Teadit 24B Joint Sealant

Dear Mr. Rimmer:

This is in reference to a protest that was filed against your decisions issued between June, 21, 1996, and August 23, 1996, concerning the classification of the subject sealant.

FACTS:

The product under consideration is made from polytetrafluoroethylene (PTFE), as confirmed by Customs Laboratory Report 5-97-102006-001, dated May 1, 1997, 2-97-30299, dated April 7, 1997, and 5-94-20812-001, dated July 22, 1994. The PTFE has been mechanically expanded to form a microporous network of extremely thin filaments, or fibrils, that are connected to microscopic particles, or nodes. The production process involves formulating a paste from PTFE powder and an extrusion aid like mineral spirits, calendering the paste, removing the extrusion aid, and heating the extruded product to a temperature just below the melting point while concurrently stretching it mechanically in several directions. The processed PTFE becomes filled with innumerable microscopic longitudinal cracks or voids, forming a microporous structure. The product is an adhesive-backed joint sealant, imported in material lengths on spools, with a cross-sectional diameter that exceeds 5 mm; invoices list dimensions from 1/8 to 1 inch in width and from 15 to 1000 feet in length.

ISSUE:

What is the classification of PTFE adhesive-backed joint sealant?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (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.

We initially considered the question of whether this product is of plastics or of textiles. This distinction is directly related to whether the product is a strip or a monofilament/rod. If the product is in the form of a rectangular strip, it become plastics rather than textile when the width exceeds 5 mm. If the product is in the form of a oval monofilament, it becomes plastics rather than textile when the cross section exceeds 1 mm. Further, we note that a joint sealant which meets the width requirements for classification as textile strips must be "flat", as stated in the Explanatory Notes (ENs) to heading 5404, Harmonized Tariff System, which represents the view of the international classification experts. Since a cross-section of the instant product shows that its edges are rounded, whether due to the nature of the material or to the shape of the orifice of the extruder, we would consider this product to be a monofilament/rod rather than a strip. As such it would be considered to be of plastics.

We next considered the question of whether the product is composed of cellular or expanded plastics for tariff purposes. In this regard, we note that the international classification experts, in the ENs to Chapter 39 of the Harmonized System, have stated:

Cellular plastics are plastics having many cells (either open, closed or both), dispersed throughout their mass. They include foam plastics, expanded plastics and microporous or microcellular plastics. They may be either flexible or rigid.

Cellular plastics are produced by a variety of methods. These include incorporating a gas into plastics (e.g., by mechanical mixing, evaporation of a low boiling point solvent, degradation of a gas producing material), mixing plastics with hollow micro-spheres (e.g., of glass or phenolic resin), sintering granules of plastics and mixing plastics with water or solvent-soluble material which are leached out of plastics leaving voids.

We have concluded that the instant product meets this definition of microporous cellular plastics.

Based on the above we have further concluded that the sealant, when imported with cross-sectional dimensions not exceeding 5 mm under the provision for monofilament or if the cross-sectional dimensions exceed 5 mm, as rods, sticks and profile shapes, other, other, other.

We do not believe that the fact that the instant product contains a strip of adhesive, with a release paper backing influences the classification of the product. The ENs to heading 3916 state that "The heading also includes such products which have been merely cut to a length exceeding the maximum cross-sectional dimension or surface-worked (polished, matt-finished, etc.), but not otherwise worked. Profile shapes with an adhesive surface, used for sealing window frames, are classified in this heading." Based on this EN, we believe that the adhesive strip constitutes an allowable surface working, rather than being a further working which would preclude classification in heading 3916. See Headquarters Ruling Letter 953257, dated March 30, 1993, in which another adhesive-backed sealant was classified in heading 3916.

HOLDING:

Adhesive-backed joint sealant rounded on the edges, ranging from 1 mm to 1 inch in greatest cross-section and imported in material lengths on spools is classifiable in subheading 3916.90.3000, HTSUSA, a provision for monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics; of other plastics; other, other; monofilament, if any cross-sectional dimension does not exceed 5 mm. Merchandise so classified is subject to a general rate of duty of 6.8 percent ad valorem. Such merchandise whose cross-sectional dimension exceeds 5 mm are classifiable in subheading 3916.90.5000, HTSUSA, a provision for such products when the cross-dimension exceeds 5 mm. Merchandise so classified is subject to a general rate of duty of 5.8 percent ad valorem.

Since reclassification of the product as indicated above is the same rate as the liquidated rate, you are instructed to deny the protest in full.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099-3553-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to the 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 Ruling 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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