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HQ 963700




December 13, 2000

CLA-2 RR:CR:GC 963700ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3214.10.0020

Port Director
U.S. Customs Service
2nd & Chestnut Streets
Philadelphia, PA 19106

RE: Protest 1101-99-100286; Moglice.

Dear Port Director:

This is our decision on Protest 1101-99-100286, concerning your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of Moglice P-1000, and other resin based molding materials.

FACTS:

The products, which are identified as formulations of epoxy resin/hardener systems, were entered on August 26,1998, and the entry was liquidated on September 3, 1999. The protest was filed on November 30, 1999. A second Customs Form 19, which requested further review (AFR) of the liquidation of the same entry, was filed on December 3, 1999.

Initially, we note that as to the August 26, 1998, entry (# 315/. . . 27624), the original protest was timely (i.e., a protest must be filed within 90 days after but not before the notice of liquidation (19 U.S.C. §1514(c)(3)(A); 19 C.F.R. §174.12(e)). The notice of liquidation was dated September 3, 1999, and the protest was filed November 30, 1999, 88 days after the notice of liquidation (27 days in September, 31 days in October, and 30 days in November equals 88 days).

Both Customs Form 19's were forwarded to Headquarters based upon the AFR which had been filed by the protestant. However, the AFR was not filed timely. 19 U.S.C 1515(a) provides, in relevant part: "Upon the request of the protesting party, filed within the time allowed for the filing of a protest under section 1514 of this title (i.e. within 90 days after but not before the notice of liquidation), a protest may be subject to further review by another appropriate customs officer, . " (Emphasis added) Protestant filed the AFR three days after the filing of the original protest, or the 91st day after liquidation. The statute is clear. The AFR should not have been approved and the original protest should have been decided by the port. For an example of the judicial treatment of the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991).

Even though the AFR is untimely and therefore must be denied, for both your and the protestant’s information, we briefly discuss the classification of the merchandise under consideration in this case.

The invoice covering the products under protest includes Moglice P-Hard, PLP, P-1130 and P-1000 which are described in product literature as being different viscosities of a plastic resin based molding adhesive product, designed for being mixed with a hardener and applied by either being poured, injected or through the use of a putty knife or caulking gun. The materials harden after curing and are said to offer long lasting, low friction properties.

ISSUE:

What is the classification of the Moglice resin articles?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, 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).

The protestant claims the merchandise is classifiable in subheading 7205.29, HTSUS, which provides for granules and powders, of pig iron, spigeleisen, iron or steel, other. Based upon product literature, the materials covered by the entry are resin/hardener molding systems used to replicate bearing surfaces. The various Moglice formulations offer users different consistencies from fluid to putty-like for use in multiple applications, such as pouring, injecting and spreading. The products are said to provide low friction, long wearing, coatings which permit precision alignments when cured.

Subheading 3214.10, HTSUS, covers resin cements, caulking compounds and other mastics. Explanatory Note (EN) 32.14 states that the heading covers preparations that are usually put up in a more or less pasty form and that, in general, they harden after application. Paragraph (I)(9) provides for mastics based on plastics (e.g., polyesters, polyurethanes and epoxide resins) with a high added proportion (up to 80%) of various fillers (e.g., clay, sand and other silicates, titanium dioxide, metallic powders). Some of these mastics are used after the addition of hardeners. They are used to seal certain joints, as fillers or sealants for coachwork, to repair metal objects or to bond them to other materials, etc.

The Moglice preparations are described by and properly classified in subheading 3214.10.0020, HTSUS, which provides for Glazier's putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings; Mastics; Other. In HQ 962556, dated March 30, 2000, and NY 858280, dated December 13, 1990, Customs has previously classified similar products in this subheading.

HOLDING:

The Moglice articles are classified in subheading 3214.10.0020, HTSUS, which provides for Glazier's putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings; Mastics; Other.

Pursuant to 19 U.S.C. §1515(a), the AFR was not timely filed and therefore, must be DENIED. You should respond to the original protest in conformance with the above classification discussion. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty (60) days from the date of the decision, the Office of Regulations and Rulings make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director,

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