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HQ 964609

39 JUL 2001

CLA2 RR:CR:GC 964609 JAS


TARIFF NO.: 7326.90.85

Port Director of Customs
610 S. Canal Street
Chicago, IL 60607

RE: Protest 390100100513; Nitrile Coated Stainless Steel Strip

Dear Port Director:

This is our decision on Protest 390100100513, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of nitrile coated stainless steel strip, in coils.


The protest should be DENIED because it was untimely filed. Under 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1), a protest shall be filed with the Customs Service within 90 days after the notice of liquidation. The subject entry was liquidated on January 3, 2000. The Customs Form 19 reflects that this protest was received in your office on April 3, 2000, i.e., it was datestamped on that date. April 3, 2000, is 91 days after January 3, r 2000, the date of liquidation, (28 days in January, not including the date of liquidation, 29 days in February, 31 days in March, and 3 days in April).

Pursuant to 19 CFR 174(f): "The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed." As the protest was filed on April 3, 2000, it was not timely filed. For an example of the judicial treatment of a protest filed one day after the 90day 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. 23d 406 (1991).


Notwithstanding that this protest is denied as untimely, other protests may be pending for which the substantive classification issues raised may be relevant. For this reason, in the interests of the sound administration of the Customs and related laws, we believe that this decision should be issued.


The merchandise under protest is automotive gasket material identified on the Customs Form 6445 as "SUS 301 .2 mm x 435 mm Part # 262575008001." It is grade 301 stainless steel strip, in coils, that is used, after importation, in the manufacture of head gaskets for internal combustion engines for motor vehicles. The steel is first primed with a chromate treatment and an adhesive applied to both sides. The steel is then coated on both sides with a nitrite synthetic rubber compound, with the rubber adhering to the steel by means of the adhesive. The coated steel is then further coated on both sides with an antistick formulation.

The merchandise was entered under a provision in heading 7326, HTSUS, as other articles of iron or steel. The entry was liquidated, however, under a provision in heading 7220, HTSUS, as flatrolled products of stainless steel, of a width of less than 600 mm. Other merchandise on the entry, stainless steel strip in coils, not coated, was entered and classified in liquidation under the heading 7220 provision. This classification is not being protested.

On protest, counsel for the importer reasserts the claim that the rubbercoated stainless steel strip is provided for in heading 7326. This is based on HQ 083126, dated February 13, 1990, in which substantially similar merchandise was found to be a composite good classifiable according to General Rule of Interpretation (GRI) 3, HTSUS. Under GRI 3(b), composite goods consisting of different materials or components that are not described by one heading, are classifiable as if consisting of the material or component which imparts the essential character to the whole. _HQ 083126 concluded that neither the steel nor the rubber constituent imparted the essential character to the good. Therefore, the merchandise was classified in heading 7326 in accordance with GRI 3(c), as the heading occurring last in numerical order from among those which equally merit consideration.

The HTSUS provisions under consideration are as follows:

Other articles of vulcanized rubber other than hard rubber:



Flatrolled products of stainless steel, of a width of less than 600 mm:

7220.20 Not further worked than coldrolled (coldreduced):

7220.90.00 Other

7326 Other articles of iron or steel:

7326.90 Other:

7326.90.85 Other


Whether the coating of stainless steel strip with rubber on both sides advances the good beyond a flatrolled product of heading 7220.


Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T. D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Your decision to classify the merchandise in heading 7220, HTSUS, was apparently based on a reading of the General Explanatory Notes (ENs) to Chapter 72 which sanction certain treatments that do not affect the heading in which the goods are classified. Among those treatments listed on pp. 1070 and 1071 of the ENs, under (C)(2)(v), are certain surface treatments to include coating with nonmetallic substances, e.g., coating with ceramics or plastics to improve the properties or appearance of the metal, protect it against rusting or corrosion, etc. The conclusion is that coating stainless steel strip with rubber on both sides "to improve the properties or appearance of the metal, protect it against rusting, corrosion, etc." is a permissible surface treatment that allows the goods to remain in heading 7220.

We find the analysis in HQ 083126 instructive as to the issues presented here. The merchandise in that ruling was described as follows "The product is specially designed and manufactured... for the production of gaskets. Its use elsewhere is economically prohibitive. One of the most important features of the article is that its surface is soft so that the gasket can obtain a good seal. Stainless steel alone cannot be used as a gasket because it is too hard to conform to the surface of the flange and to form the required seal. By coating the stainless steel with this thin layer of rubber, an ideal article for the production of gaskets has been created. The article has the strength of steel and the softness of rubber." The statement in HQ 083126, "[e]ven if coating with rubber were to be considered a surface treatment such as coating with plastics, in this case it would not be for improving the properties or appearance of the metal, protecting it, or the like" is particularly relevant here.

It is clear that the rubber coating in this case is not designed to enhance the metal; rather, it is a functional constituent designed to effect a good seal. Thus, the rubber component, described by heading 4016, advances the stainless steel strip beyond a good of heading 7220. Further, the analysis in HQ 083126 concerning the significance of the steel is equally compelling. For these reasons, we find that under GRI 3(c) the stainless steel strip coated with a nitrite synthetic rubber compound is to be classified in heading 7326, as the heading that occurs last in numerical order.

A classification opinion from the Harmonized System Committee of the World Customs Organization recently added to the Compendium of Classification Opinions, has been cited as possible authority for classifying this merchandise in heading 7220. However, that decision classified a laminated steel product in subheading 7210.70 as flatrolled products of iron or nonalloy steel, of a width of 600 mm or more, painted, varnished or coated with plastics. See Annex to Doc. 42.030 E (HSC/21/March 98). The product, imported in coils or cut into sheets, consisted of two flatrolled steel sheets enclosing a sheet of plastics which constitutes the inner core, the core designed to impart superior sounddamping quality to the product. The product is used for external cladding of buildings, internal decoration, automotive body panels, home appliances, business machines, etc. We find that this opinion is not instructive in this case because the provisions are different, as are the constituent materials and the manner of construction. Moreover, the product had clearly been advanced beyond a good of heading 7210. In the described circumstances a classification based on GRI 3 was appropriate.


Under the authority of GRI 3(c), the stainless steel strip coated on both sides with a nitrile synthetic rubber coating, is provided for in heading 7326. It is classifiable in subheading 7326.90.85, HTSUS.

Notwithstanding that this protest is denied as untimely, similar merchandise on other entries not the subject of this protest should be reclassified under subheading 7326.90.85, HTSUS. In accordance with Section 3A(l 1)(b) of Customs Directive 099 3550065, 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 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 of Regulations and Rulings will 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.


John Durant, Director

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