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NY E89535




December 8, 1999

CLA-2-76:RR:NC:1: 115 E89535

CATEGORY: CLASSIFICATION

TARIFF NO.: 7616.99.5090

Mr. Steven B. Zisser
2155 Paseo De Las Americas Suite 34
San Diego, CA 92173

RE: The tariff classification of TDUX and RDSS Inflatable Duct Sealing System from Mexico.

Dear Mr. Zisser:

In your letter dated November 2,1999 you requested a ruling on behalf of your client the Alfa Southwest Corporation.

The TDUX and the RDSS Inflatable Duct Sealing System is a wraparound, inflatable, mastic and adhesive foam-lined bladder used to seal empty or filled cable ducts. When inflated to the proper air pressure, the Sealing System seals underground ducts, guaranteeing a reliable water and gas block. The cable ducts are found in manholes, vaults, building basements and cabinets. The sole purpose of sealing the ducts is to prevent water and gases from flowing into manholes or areas where cables enter a building.

The following items are the standard parts of a TDUX and RDSS Sealing System: plastic coated aluminum sheeting bladder, mastic tape, adhesive foam, plastic tube, plastic ring and release paper. The plastic coated aluminum sheeting bladder is fully formed and shaped in Belgium.

In Mexico all the components are assembled together to create the Sealing System. The assembly operation includes, cutting various components to shape and length, assembly, testing, labeling and packaging.

In your inquiry you raise three issues:
Whether the TDUX and RDSS Inflatable Duct Sealing System is properly classified under Subheading 8484.10.0000, HTSUS in the provision for: Gaskets and similar joints of metal sheeting combined with other material? Whether the TDUX and RDSS Inflatable Duct Sealing System qualifies as a NAFTA originating articles when imported from Mexico to the United States.? Whether the origin of the TDUX and RDSS Inflatable Duct Sealing System is Mexico and the article should be marked “Made in Mexico”?

The issue whether the TDUX and RDSS is properly classified under subheading 8484.10.0000, HTSUS, is addressed by the National Import Specialist, who handles that tariff number. “You contend the TDUX Inflatable Duct Sealing System performs the same functions as a gasket and operates on the same principles as a gasket, and represents a technological advancement in gaskets. You thus believe that the TDUX is classifiable in subheading 8484.10.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for gaskets and similar joints of metal sheeting combined with other material or of two or more layers of metal.

We do not agree with your contentions. The Oxford English Dictionary, 2nd Edition, defines the term “gasket” as:

2.a. A strip of tow, plaited hemp, or other material, used for packing a piston or for caulking a joint. b. A flat sheet or ring of some relatively soft material made to be placed between adjoining metal surfaces so as to seal the joint against the pressure or gas or liquid.

The TDUX is not used to seal a joint, but rather to plug an opening which has been cut into the side of a duct to allow entry of a cable. The TDUX is also not used to pack a piston or similar component in an engine, pump, or other machinery. Accordingly, the TDUX does not perform the same functions as a gasket. In addition, the TDUX does not operate on the same principle as a gasket. A gasket must be tightly compressed between the surfaces it is intended to seal; the TDUX, on the other hand, must be inflated in order to seal a duct opening. Finally, in our opinion the provision for gaskets in heading 8484 is an eo nominee designation, describing an article by a specific name. There is nothing to indicate that the TDUX is either commonly or commercially known as a gasket.

For the foregoing reasons, in our opinion the TDUX Inflatable Duct Sealing System does not represent a technological advancement in gaskets and is not classifiable in subheading 8484.10.0000, HTS.”.

It is the opinion of this office that the aluminum sheet material is the essential character because it provides the article with long term sealing capacity. The applicable subheading for the TDUX and RDSS Inflatable Duct Sealing System will be 7616.99.5090, Harmonized Tariff Schedule of the United States (HTS), which provides for Other articles of aluminum: Other: Other. The rate of duty will be 2.5% ad valorem.

The second question raised in your inquiry has to do with NAFTA eligibility: The North American Free Trade Agreement 12(b) of the General Notes states “For the purpose of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a Nafta party”. The aluminum sheeting imported into Mexico from Belgium has not undergone a tariff change and the sheeting is incorporated with products produced in Mexico. There is no tariff change for the item entering the United States.

The last question raised in your inquiry has to do with country of origin marking. The marking issue is covered in Section 102.11 General Rules for determining the Country of Origin of a good for purposes of Annex 311 of the North American Free Trade Agreement. Section 102.11 states that “If the good is not wholly obtained or produced in a single country, paragraph (a)(2) provides that the of origin can be the country in which the good is produced exclusively from domestic materials”.It is the opinion of this office that the Belgian sheeting along with Mexican products being assembled in Mexico meet the criteria of Section 102.11 and that the product can be marked “Made in Mexico”.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

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 Melvyn Birnbaum at 212-637-7017.

Sincerely,

Robert B. Swierupski
Director,

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