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.


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.


Is this product, which is used for adhesive purposes, an adhesive?


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.


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.


John Durant, Director
Commercial Rulings Division