HQ 960600

March 17, 1998

CLA-2 RR:CR:GC 960600 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 5301-97-100075,

dated January 28, 1997, Regarding Teadit 24B Joint Sealant

Dear Mr. Rimmer:

This is in reference to a protest that was filed against

your decisions issued between November 8, 1996, and January 24,

1997, concerning the classification of the subject sealant.

FACTS:

The product under consideration is made from

polytetrafluoroethylene (PTFE), as confirmed by Customs

Laboratory Reports 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