CLA-2 CO:R:C:G 089387 KWM
Mr. Jeffrey H. Pfeffer
Fritz Companies, Inc.
40 Exchange Place, 12th Floor
New York, New York 10005
RE: Reconsideration of New York Ruling Letter 849353; Stein
Fibers; polyester fiber; waste; stuffing; spinnable
fiber; staple fiber.
Dear Mr. Pfeffer:
We have received your request for reconsideration of New
York Ruling Letter (NYRL) 849353, regarding the classification
of "polyester staple fibers." After considering your
submission and other items presented, we find that NYRL 849353
is correct, and we decline to revoke or modify it.
FACTS:
The merchandise at issue is described variously as
"polyester fiber" or "polyester staple fiber" or "polyester
fiber waste." The precise method of manufacture is unclear,
but it would appear that "regenerated materials" (polyester
bottle scrap and x-ray film) are processed to create polyester
fibers, which are then imported. It is our understanding that
the samples which accompanied your request were provided to
the New York Seaport at a meeting held with Customs
representatives from the area. The samples have been tested
by the New York Customs Laboratories and were described as
follows:
The samples are composed of crimped, cut staple polyester
fibers generally of uniform length.
The samples are not carded, combed or otherwise processed
for spinning.
The samples are capable of being spun with further
processing.
In addition to your request letter, you have provided several
items of correspondence with Stein's suppliers regarding the
condition of the merchandise upon arrival. Two reports issued
by independent laboratories regarding the condition of the
fibers are also included.
In a series of entries, dating from October 6, 1989
through March 20, 1990, Stein Fibers entered through the port
of Savannah several shipments of fiber which were classified
in heading 5903, HTSUSA. Fritz Companies, on behalf of Stein,
protested the classification (Protest number 1512-90000066,
dated August 29, 1990). These entries span the date of the
original New York ruling, dated February 28, 1990. Subsequent
to the last protested entry, the request for reconsideration
was filed (dated April 29, 1991). Disposition of the protest,
we understand, has been held pending the resolution of this
reconsideration request.
ISSUE:
Is the merchandise classified as synthetic staple fibers,
not carded, combed or otherwise processed for spinning, or is
it classified as waste of man-made fibers?
LAW AND ANALYSIS:
Request for reconsideration and the pending protest
Because Fritz Companies, on behalf of Stein Fibers, has
pending with the port of Savannah a protest action, this
request for reconsideration should be returned to the inquirer
without a response, or in the alternative should be made
applicable to prospective transactions only. The Customs
regulations provide generally that transactions for which
entry has been made and for which liquidation has occurred,
shall not be subject to the rulings program. Such cases
should be pursued to their conclusion through the protest
procedure. Therefore, Customs may refuse to reconsider the
New York ruling as you requested.
We note however, that an identical issue would be
presented under an application for further review of a protest
decision, and we have therefore determined that a response to
your reconsideration will be issued. However, should your
protest be decided adversely to your interests, it will not be
subject to the further review procedure. The following ruling
will resolve any open issues with regard to the entries at
issue in the pending protest. In the future, requests such as
this for merchandise already subject to protested entries will
be summarily denied and returned.
Classification
Classification under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) is made in accordance
with the General Rules of Interpretation (GRI's). The
systematic detail of the harmonized system 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 relevant Section or Chapter Notes.
Your request for reconsideration, as well as your
original ruling request, asserts that the proper
classification for the subject merchandise is as "waste" of
heading 5505, HTSUSA. In your April 29, 1991, letter you
premise that assertion on the condition of the merchandise as
having "large variances in denier, shade and staple lengths.
The fibers are crimped and they contain snarls, broken
filaments and, in many instances, must be dried and cleaned
after importation . . .." You argue that the fibers are not
suitable for stuffing and that they fall within the scope of
"waste" as that term appears in heading 5505, HTSUSA.
Under the HTSUSA, Customs has classified as "waste"
products which are the by-product of a manufacturing process,
generally not suitable for the ordinary and original purposes
of manufacture. Waste is a refuse product, and not a
manufactured good in and of itself. In this case, all of the
evidence you have provided indicates that the fibers are the
specific (and intended) result of a deliberate manufacturing
process. It is not a by-product of manufacture or the result
of a mistake of manufacture. Whether or not it is suitable
for its' intended use may affect classification in alternative
headings, but simple unsuitability for use as stuffing,
without further processing, does not automatically make the
fibers waste material classifiable in heading 5504, HTSUSA.
Lastly, the fact that the fiber may be manufactured from waste
does not in any way make the manufactured fibers themselves
waste. In this case, the quality of the raw material is
irrelevant. We find that these fibers are not waste.
Having found that the fibers are not considered "waste"
as that term is defined under the HTSUSA, Customs classified
your merchandise under heading 5503, HTSUSA, as synthetic
staple fibers not carded, combed or otherwise processed for
spinning. While your letter focuses on the inclusion of this
merchandise under the "waste" heading, it is implied that
heading 5503, HTSUSA, does not include the fibers. In part,
you argue that the Explanatory Notes substantiate your claims.
We do not agree.
The products classified in heading 5503 are synthetic
staple fibers which have not been processed for spinning. The
Explanatory Notes constitute the official interpretation of
the nomenclature at the international level. And, while they
are not legally binding on the Customs Service, we do consult
the Explanatory Notes in most instances to assist in
discerning the intended scope of the headings. Therefore, we
have considered your assertions that the Explanatory Note
references to "waste . . . [as] relatively long or short
fibers, broken, knotted or tangled, etc." and "staple fibers
'are generally of uniform length, which distinguishes them
from waste material of heading 55.05.'" support your position.
Standing alone, those excerpts may appear to weigh against
Customs' classification. However, we note that the General
Explanatory Notes to chapter 55, HTSUSA, include the
following:
The Chapter covers the man-made fibers
described in the General Explanatory Note to chapter
54 when in the form of staple fibers (i.e.,
discontinuous fibers) or of certain filament tow; it
also covers the products arising at various stages
of working these fibers or tow . . .
(Emphasis added), as well as the Explanatory Notes to heading
5505, HTSUSA, which provide for the inclusion of:
(1) Fiber wastes (soft wastes), such as
relatively long fibers obtained as waste
during the formation and processing
filaments; short fibers obtained as waste
from the carding, combing and other
processes preparatory to the spinning of
stale fibers (e.g., noils, small broken
pieces of laps, slivers or rovings).
(2) Yarn wastes (hard waste), i.e., broken,
knotted or tangled yarns collected as
waste during the spinning, doubling,
reeling, weaving, knitting operations.
(Emphasis original). The notes clearly anticipate that man-
made staple fibers, not fully processed for spinning, may be
classified in chapter 55, HTSUSA. However, the notes also
make clear that merchandise such as the instant fibers are not
waste. All of the characteristics described, such as "broken,
knotted or tangled" are the unintended result of spinning,
weaving or similar operations. Further, the "relatively long
. . . or short" fibers are "obtained as waste" during fiber
processing. Such descriptions as you cite cannot be read in
isolation; they are relevant only in relation to the full text
of the notes.
With regard to the question of "uniform length", Customs
Laboratories have examined samples of the fibers on two
separate occasions. First, samples drawn form the shipments
entered at the port of Savannah were found to be of uniform
length. Later, following a meeting with Customs officials in
New York, Stein Fibers provided additional samples for
testing. These too were found to be generally of uniform
length. Thus, in two separate and unrelated examinations
(including tests performed on samples of the importer's
choosing), Customs has found the fibers to be of uniform
length.
Your letter argues at length that the merchandise is
unsuitable for use without further processing. You have
indicated that the fiber will be used for stuffing. Heading
5503, HTSUSA, classifies both fiber intended to be spun and
fiber for stuffing. Fiber may well be suitable for stuffing
but not for spinning (i.e, lower grade fiber). This material
was manufactured for use as stuffing; It is the intended
result of such manufacturing and it is clearly within the
scope of heading 5503, HTSUSA.
HOLDING:
New York Ruling Letter 849353 is affirmed. The polyester
staple fiber, found by Customs Laboratories to be of generally
uniform length, and not combed, carded or otherwise processed,
is classified in subheading 5503.20.0000, HTSUSA. The
applicable duty rate is 4.9 percent ad valorem.
Sincerely,
John A. Durant, Director
Commercial Rulings Division
cc: Savannah District Director