HQ 957359

August 22, 1995

CLA-2 R:C:F 957359 ALS

CATEGORY: Classification

Tariff No.: 3909.50.5000

District Director of Customs

1000 2nd Ave., Room 2200

Seattle, WA 98104

RE: Request for Further Review of Protest No. 3004-94-100176, dated
September 20, 1994, Concerning Multiple Entries of Polyurethane Binder
101

Dear Mr. Hardy:

This ruling is on a protest that was filed against your decisions of
July 1, 1994 and July 22, 1994, concerning multiple entries of the
subject polyurethane binder.

FACTS:

The product under consideration is a prepolymer composed of toluene
diisocyanate (TDI), diphenylmethane diisocyanate (MDI)and oxyalkyle
polyol in various percentages. It is used in mixtures of rubber granules
as a binding agent to manufacture an overall flexible and rubber-like
end-product when cured.

ISSUE:

Is the product an elastomeric polyurethane as described in subheading
3909.50.1000, Harmonized Tariff Schedule of the United States Annotated
(HTSUSA)?

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

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accordance with the terms of the heading 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.

In reviewing the documents of record we note that the importer and
Customs at the port of entry agreed that the product is classifiable in
subheading 3909.50, HTSUSA. The importer claims that the product is
elastomeric and should be further classified in subheading 3909.50.1000,
HTSUSA. Customs found that the product is not elastomeric and classified
the product under subheading 3909.50.5000, HTSUSA.

In considering whether the product is elastomeric we refer to Additional
U.S. Note 1 to Chapter 39, HTSUSA, which reads, in pertinent part:

For the purposes of this chapter, the term \"elastomeric\" means a
plastics material which after cross-linking can be stretched at 20 C to
at least three times its original length and that, after having been
stretched to twice its original length and the stress removed, returns
within five minutes to less than 150 percent of its original length.

In evaluating this product against the requirements of that definition
we note that a product must be a plastics material which must possess
certain stretch characteristics after cross-linking. Based on
documentation submitted by the importer and analyses of the product by
the Customs laboratory, we have concluded that the product known as
Binder 101 is not an elastomeric product. It does not meet the above
definition because it is a prepolymer which has not been cross-linked
and based on testing of the sample product in dumbbell form by our
laboratory, it does not meet the stretch requirements of that
definition.

HOLDING:

Binder 101, a uncured prepolymer composed of 2 types of diisocyanate and
oxyalkyle polyol in various percentages which does not meet the
requirements of Additional U.S. Note 1 to chapter 39, HTSUSA, is
classifiable in subheading 3909.50.5000, HTSUSA, under the provision for
Polyurethanes: Other. It is subject to a general rate of duty of 6.3
percent ad valorem.

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Since the classification indicated is the same as the classification
under which the entries were 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 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, this decision
should be provided by your office to the protestant no late 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