OT:RR:CTF:CPMMA HQ H322972 ACA
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., waxes, rosin esters, unmodified natural shellac)
The General EN to chapter 39 provides, in pertinent part, as follows:
When as a result of the addition of certain substances, the resultant products answer to the description in a more specific heading elsewhere in the Nomenclature, they are excluded from Chapter 39; this is, for example, the case with:
(a) Prepared glues - see exclusion (b) at the end of this General Explanatory Note.
…
In addition to the exclusions mentioned in Note 2, the Chapter excludes :
…
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 this Chapter (fillers, plasticisers, solvents, pigments, etc.), contain other added substances not falling in this Chapter (e.g., waxes, rosin esters, unmodified natural shellac) and products of headings 39.01 to 39.13 put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg (heading 35.06).
* * * *
The subject merchandise was initially entered under subheading 3214.10.0020, HTSUSA, as a mastic. EN 32.14 defines mastics as preparations that are typically in a pasty form and applied in thick coatings or layers with a caulking gun, spatula, trowel, plaster float, or similar tools. Mastic preparations are mainly used to stop, seal, or caulk cracks, and in specific cases, to bond or firmly join components together. They are distinguished from glues and other adhesives by their application in thick coatings or layers.
Upon review of the protest documents, we agree with the Protestant that AB 35AS/3 is not a mastic. According to the information provided, the subject merchandise is of a liquid consistency that flows with limited resistance. Only a small volume is used at a time and is used to attach textiles together. AB 35AS/3 does not have a thick consistency, nor is it applied in thick coatings. Therefore, the subject merchandise is not classified in heading 3214, HTSUS.
When CBP initially reviewed AB 35AS/3, the Protestant indicated that the subject merchandise is comprised of PU, PMDI, and MDI, which led CBP to reclassify AB 35AS/3 in heading 3909, HTSUS, as a polyurethane. Subsequent to this initial review, the Protestant provided documentation indicating that 1 percent of the subject merchandise is comprised of additions of certain substances that preclude classification in heading 3909, HTSUS. The issue, therefore, is whether the addition of these substances, consisting of aliphatic tin salt, anti-foam, and phosphoric acid, precludes classification in heading 3909, HTSUS, as a polyurethane.
Polyurethanes in primary forms are provided for eo nomine in heading 3909, HTSUS. See Headquarters Ruling Letter (“HQ”) H192516 (August 7, 2013) (high-density polyurethane classified in heading 3909, HTSUS); HQ 964054 (March 2, 2001) (Customs stated that polyurethanes are included eo nomine in heading 3909, HTSUS); NY N033657 (September 2, 2008) (polyurethane prepolymer elastomer classified in heading 3909, HTSUS); NY I88167 (November 5, 2002) (Polymeric MDI CAS-9016-87-9 was classified in heading 3909, HTSUS). Note 6 to chapter 39 establishes that the language “primary forms” applies only to certain forms, including liquids and pastes. However, the General ENs to chapter 39 note that when certain substances are added to the composition of the subject merchandise, and the resulting product is defined by a more specific heading elsewhere in the Nomenclature, they are excluded from chapter 39. The General ENs to chapter 39 further note that prepared glues and products of heading 3506, HTSUS, are specifically excluded from chapter 39.
Combining PU, PMDI, and MDI creates a product based on the polymers of heading 3909, HTSUS. However, the merchandise also consists of three additional substances, namely, phosphoric acid, anti-foam, and aliphatic tin salt—the latter acting as a catalyst necessary to provide the adhesive properties of the subject merchandise. With the addition of these three substances to the composition of the subject merchandise, its characteristics more closely resemble those of a glue or adhesive material than a polyurethane. Moreover, we find that the addition of substances such as aliphatic tin salt and anti-foam are the type of additions described in the General EN to chapter 39, which would exclude classification of the subject merchandise in chapter 39. Instead, glues and adhesives are more specifically described in heading 3506, HTSUS, which provides for “Prepared glues and other prepared adhesives, not covered by a more specific heading in the Nomenclature.”
EN 35.06 (B)(4) notes that preparations, specifically consisting of blends classifiable in headings 3901 to 3913, HTSUS, which “apart from any permitted additions to the products of Chapter 39…, contain other added substances not falling in that Chapter (e.g., waxes, rosin esters, unmodified natural shellac)” are classified in heading 3506, HTSUS, if not covered by a more specific heading. EN 35.06 (B)(4) should be read in conjunction with the General EN to chapter 39, which excludes the same type of preparations described in EN 35.06 (B)(4). Moreover, in past rulings, we have classified merchandise consisting of polyurethane blends containing additives not falling in chapter 39, such as aliphatic compounds and anti-foam agent, in heading 3506, HTSUS. See, e.g., HQ H045781 (June 25, 2010) (adhesive in liquid form consisting of a mixture of polyurethanes, MDI, and a small amount of other substances, including aliphatic compounds such as paraffin wax, was classified in heading 3506, HTSUS); HQ 960256 (December 3, 1997) (adhesive made with amorphous thermoplastic propylene copolymer with propylene, aliphatic hydrocarbon resin, and a polyethylene wax was classified in heading 3506, HTSUS); NY N121623 (October 1, 2010) (adhesive consisting of polyamide resin, antioxidants, anti-foam agent and other additives was classified in heading 3506, HTSUS).
Here, AB 35AS/3 consists of a blend of polymers of heading 3909, HTSUS, along with additional substances outside of headings 3901 to 3913 that exclude the merchandise from classification in chapter 39. In particular, the addition of these substances, specifically the aliphatic tin salt, provides the subject merchandise with adhesive properties for its use in the manufacture of automotive headliners. Therefore, AB 35AS/3 is properly classified in heading 3506, HTSUS.
HOLDING:
By application of GRI 1, AB 35AS/3 is classified in heading 3506, HTSUS, specifically 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 or 3913 or on rubber: Other.” The 2019 general column one rate of duty for subheading 3506.91.5000, HTSUSA, is 2.1% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to GRANT the Protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Allyson Mattanah for
Craig T. Clark, Director
Commercial and Trade Facilitation Division