CLA-2 CO:R:C:F 957194 ALS
District Director of Customs
101 E. Main St.
Norfolk, VA 23510
RE: Request for Further Review of Protest 1401-64-100114, dated
May 5, 1994, Concerning Estane Resin 5703G
Dear Mr. Murphy:
This ruling is on a protest that was filed against your
decision of April 8, 1994, regarding the subject product.
FACTS;
The product under consideration is a thermoplastic
polyurethane polymer in the shape of tan granules. The product
is used in formulating shoe constructive adhesives, commercial
adhesive systems, lamination, magnetic tape and sheet adhesives.
Product was stated to be elastomeric but this could not be
confirmed since manufacturer indicates that polymer is too soft
and tacky and it is not possible to extrude dumbbell shapes or
sheets for testing.
ISSUE:
Is this product, which is used for adhesive purposes, an
adhesive?
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 - 2 -
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.
In considering the classification of the subject product, we
noted that, although it is used as a polyurethane cement, the
protestant notes that it possesses the typical elastomeric
behavior regarding the ability to be stretched to high
elongations and to snap back with high recovery and that it
should, therefore, be classified in subheading 3909.50.1000,
HTSUSA. While the product may have elastomeric qualities and
might meet the requirements of Additional U.S. Note 1 of Chapter
39, HTSUSA, we note that the nature of the product did not permit
the Customs laboratory to test the product for such qualities.
We note that the product is being used as an adhesive.
While the protestant claims that classification in
subheading 3909.50.1000, HTSUSA, connotes a finished form of a
cement, whereas Estane 5703G is a raw material used to make a
polyurethane cement, we believe that such a classification is
correct. In Naftone v United States, C.D. 4578, desmocoll 400, a
hydroxylated polyurethane resin formed principally by the
reaction of Toluenediisocyanate and a polyadipate was held to be
a cement. That product was imported as a solid and was
ordinarily used as a cement after being dissolved in a solvent
solution. The court held that although in its imported condition
it was not used as a cement (adhesive) it is nonetheless
definitely capable of such use. The court held that a cement is
"Any substance used by men or animals for making bodies adhere to
each other."
Section 9.1.5 in the Handbook on Plastics, Elastomers and
Composites, Second Edition, by Charles A. Harper, indicates,
under the heading for Adhesives: Adhesives may be classified by
function, chemical composition, mode of application and setting,
and end use. The chemical composition classification broadly
describes adhesives as thermosetting, thermoplastic, elastomeric,
or combinations of these.
In the ICI Polyurethane Book, Second Edition, by George
Woods (page 198), it is indicated that: Polyurethane adhesives
include both one and two component systems, with and without
solvents to assist wetting, heat-activated thermoplastics
adhesives, cross-linkable liquid polyurethanes and various
aqueous dispersions. Some adhesives are mixtures of polyurethane
or isocyanates with other polymers. The established uses of
polyurethane adhesives include: laminating adhesives for flexible
- 3 -
materials-textiles, plastic films, aluminum foil, paper and
board. For bonding rubber, textiles, leather, plasticized PVC
and polyurethanes. For bonding metal, and metal to rubber and
plastics.
We have recently been advised that the importer, after
further consideration, agrees with the prior liquidation of the
product.
HOLDING:
Estane 5703G, a thermoplastic polyurethane used as an
adhesive, is classifiable in subheading 3909.50.2000, HTSUSA, the
provision for polyurethanes, in primary form, cements. The
general rate of duty for products so classifiable is 2.1 percent
ad valorem.
Since the classification indicated above is the same as the
classification under which the entry was liquidated, 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 entry 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 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