CLA-2 R:C:F 957359 ALS

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.


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.


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


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 - 2 -

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.


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.

- 3 - 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.


John Durant, Director
Commercial Rulings Division