CLA-2 RR:CR:GC 960601 ALS
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