H322972

 HQ H322972 June 16, 2022 OT:RR:CTF:CPMMA HQ H322972 ACA CATEGORY: Classification TARIFF NO.: 3506.91.50 Port Director Port of Savannah, Georgia U.S. Customs and Border Protection 1 East Bay Street Savannah, GA 31401 Attn: John Amaya, Import Specialist, Pharmaceuticals, Health & Chemicals Center of Excellence and Expertise Re: Protest and Application for Further Review No: 1703-20-107236; Classification of AB 35AS/3 adhesive Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1703-20-107236, timely filed on June 15, 2020, on behalf of Industrie Chimiche Forestali S.p.A. (“ICF” or “Protestant”), concerning classification of an adhesive known by the trade name “AB 35AS/3” under the Harmonized Tariff Schedule of the United States (“HTSUS”). Protestant asserts that CBP’s classification of the subject merchandise at liquidation is incorrect. FACTS: AB 35AS/3 is a ready-to-use adhesive presented as a brown liquid. It is composed of 50 to 55 percent polyurethane (“PU”) prepolymer, 30 to 40 percent 1,1’methylenebix[4-isocyanato-benzene] (“PMDI”) (CAS # 9016-87-9), 5 to 15 percent polymethylenepolyphenylene isocyanic acid ester (“MDI”) (# CAS 101-68-8), 0.3 to 0.6 percent aliphatic tin salt, 0.1 to 0.3 percent phosphoric acid, and 0.1 to 0.2 percent anti-foam. Aliphatic tin salt is a catalyst used in the production of polyurethane and is one of the necessary components that provides the adhesive properties to the AB 35AS/3 adhesive during the application phase. Phosphoric acid is a stabilizer necessary for the workability of the adhesive during the application phase. Anti-foam avoids foam generation during the application phase. The subject merchandise is primarily used in the manufacture of automotive headliners consisting of a PU foam core, which is sandwiched between glass fiber cloth and then attached to textile outer layers. The adhesive is specially formulated to bind these materials together. It can be applied by a roll coater machine or brush in a small volume. The subject merchandise was entered at the Port of Savannah (“Port”) on February 4, 2019, in subheading 3214.10.0020, HTSUSA (“Annotated”), which provides for “Glaziers’ putty, grafting putty, resin cements, caulking compounds and other mastics; painters’ fillings; nonrefractory surfacing preparations for facades, indoor walls, floors, ceilings or the like: Glazier’s putty, grafting putty, resin cements, caulking compounds and other mastics; painters’ fillings: Mastics: Other.” At the time of entry, the submitted documents did not indicate that the merchandise contained aliphatic tin salt, phosphoric acid, and anti-foam. Upon examination of the entry, CBP reclassified the subject merchandise, which was liquidated on January 3, 2020, in subheading 3909.50.5000, HTSUSA, which provides for “Amino-resins, phenolic resins and polyurethanes, in primary forms: Polyurethanes: Other.” In this protest, Protestant claims that the subject merchandise is properly classified in subheading 3506.91.5000, HTSUSA, which provides for “Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg: Other: Adhesives based on polymers of headings 3901 to 3913 or on rubber: Other.” Alternatively, protestant argues that, if not classified in subheading 3506.91.5000, HTSUSA, the subject merchandise should be classified in subheading 3909.50.2000, HTSUSA, which provides for “Amino-resins, phenolic resins and polyurethanes, in primary forms: Polyurethanes: Cements.” Following submission of the instant protest, we requested and received from Protestant a letter, dated January 14, 2021, detailing an external independent laboratory’s certificate of analysis on the subject merchandise (“Supplemental Submission”). ISSUE: Whether the AB 35AS/3 adhesive is properly classified in heading 3214, HTSUS, as a mastic; in heading 3506, HTSUS, as “other” prepared adhesive; or in heading 3909, HTSUS, as a polyurethane. LAW AND ANALYSIS: Initially, we note that the protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed, within 180 days of liquidation of the entry. See 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 1703-20-107236 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2019 HTSUS provisions under consideration in the instant case are as follows: 3214 Glaziers’ putty, grafting putty, resin cements, caulking compounds and other mastics; painters’ fillings; nonrefractory surfacing preparations for facades, indoor walls, floors, ceilings or the like: 3506 Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg: 3909 Amino-resins, phenolic resins and polyurethanes, in primary forms: * * * * Note 6(a) to chapter 39 provides, in pertinent part: In headings 3901 to 3914, the expression “primary forms” applies only to the following forms: Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 32.14 provides, in pertinent part, as follows: The products of this heading are preparations of widely differing composition which are essentially characterised by the uses to which they are put. These preparations are usually put up in a more or less pasty form and in general they harden or cure after application. However, some are in solid or powder forms which are made pasty at the time of use by heating (e.g., by melting) or by addition of a liquid (e.g., water). The products of this heading are usually applied with a caulking gun, a spatula, a trowel, a plasterer’s float or similar tools. (I) GLAZIERS’ PUTTY, GRAFTING PUTTY, RESIN CEMENTS, CAULKING COMPOUNDS AND OTHER MASTICS These preparations are mainly used to stop, seal or caulk cracks and, in certain cases, to bond or firmly join components together. They are distinguished from glues and other adhesives by the fact that they are applied in thick coatings or layers. It should be noted, however, that this group of products also covers mastics used on the skin of patients around stomas and fistulas. EN 35.06 provides, in pertinent part, as follows: This heading covers: … Prepared glues and other prepared adhesives, not covered by a more specific heading in the Nomenclature, for example : … (4) Preparations specially formulated for use as adhesives, consisting of polymers or blends thereof of headings 39.01 to 39.13 which, apart from any permitted additions to the products of Chapter 39 (fillers, plasticisers, solvents, pigments, etc.), contain other added substances not falling in that Chapter (e.g.,

Initially, we note that the protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed, within 180 days of liquidation of the entry. See 19 U.S.C. § 1514(c)(3). Further Review of Protest No. 1703-20-107236 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2019 HTSUS provisions under consideration in the instant case are as follows:3214 Glaziers’ putty, grafting putty, resin cements, caulking compounds and other mastics; painters’ fillings; nonrefractory surfacing preparations for facades, indoor walls, floors, ceilings or the like: 3506 Prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg: 3909 Amino-resins, phenolic resins and polyurethanes, in primary forms: * * * *Note 6(a) to chapter 39 provides, in pertinent part: In headings 3901 to 3914, the expression “primary forms” applies only to the following forms: Liquids and pastes, including dispersions (emulsions and suspensions) and solutions;* * * *The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the internati