CLA-2 CO:R:C:F 089063 EAB
District Director
U.S. Customs Service
200 East Bay Street
Charleston, South Carolina 29401-2611
Re: Application for Further Review of Protest No. 1601-1-
100039, dated January 24, 1991, concerning cronar
plastic film sheets; polyesters; polyester blends;
primary form; waste; Patton; Latimer; Federated Metals;
T.D. 49493
Dear Sir:
This is a decision on a protest filed January 24, 1991,
against your decision in the classification of merchandise
liquidated November 2, 1990, November 23, 1990 and November 30,
1990.
FACTS:
The protestant entered all goods in subheading 3915.90.0000,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), a provision for waste of plastics, other [not ethylene,
styrene or vinyl chloride], free of duty. The goods were im-
ported on various dates upon break-bulk pallets. Following
visual examination, Customs reclassified all goods under
subheading 3920.63.1000, HTSUSA, as other film of plastic of
polyesters, of unsaturated polyesters, flexible; the rate of duty
was advanced to 4.2 percent ad valorem.
Protestant seeks reclassification of the goods to subheading
3915.90.0000, HTSUSA, providing as stated above. Protestant
offers no sample, representative photograph or laboratory
analysis of the goods in dispute. Per counsel, protestant admits
that the merchandise is, in fact, a thermoplastic film consisting
of polyethylene terephthalate (PET) and polyvinylidene chloride
(PVDC), and offers that, as imported, it "[was] defective, * * *
[;therefore,] not usable for its intended use * * * as a plastic
for remanufacture."
ISSUE:
What is the proper classification under the HTSUSA of a
polyester blend in the form of film or sheets to be used as a
material for remanufacture?
LAW AND ANALYSIS:
The tariff classification of merchandise under the HTSUSA is
governed by the principles set forth in the General Rules of
Interpretation (GRIs) and, in the absence of special language or
context which otherwise requires, by the Additional U.S. Rules of
Interpretation. The GRIs and the Additional U.S. Rules of
Interpretation are part of the HTSUSA and are to be considered
statutory provisions of law for all purposes. GRI 1 requires
that classification be determined according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes and, unless otherwise required, according to the
remaining GRI's taken in order.
The Explanatory Notes to the Harmonized Commodity Descrip-
tion and Coding System represent the official interpretation of
the Customs Cooperation Council on the scope of each heading;
although neither binding upon the contracting parties to the
Harmonized System Convention nor considered to be dispositive
interpretations, they should be consulted on the proper scope of
the System.
Note 4, chapter 39, provides, inter alia:
For the purposes of this chapter, except where the
context otherwise requires, copolymers * * * and
polymer blends are to be classified in the heading
covering polymers of that comonomer which predominates
by weight over every other single comonomer * * * .
If no single comonomer predominates, copolymers or
polymer blends, as the case may be, are to be
classified in the heading which occurs last in
numerical order among those which equally merit
consideration.
We find that the subject goods are a polyester film, more
specifically, a thermoplastic blend of PET and PVDC. The goods
are properly classifiable under heading 3915, HTSUSA, only if
they are manufacturing waste or if they are clearly unusable for
their original purpose. Since counsel for the protestant admits
that the goods are "not usable for [the] intended use * * * as a
plastic for remanufacture", the goods fail that part of the test
requiring that they be unusable for their original purpose.
Concerning the common meaning of "waste", we do not find
counsel's citation to Webster's New Collegiate Dictionary
persuasive, since that term has been well defined as a matter of
Customs law for nearly 100 years. In Patton v. U.S., 159 U.S.
500 (1895), the Supreme Court reviewed, ultimately, Customs
classification of woolen goods alleged to be "waste." The Court
stated that the term "does not presuppose that the article is
absolutely worthless, but that it is unmerchantable and used for
purposes for which merchantable material of the same class is
unsuitable." Id., 503. "If the ordinary definition of 'waste,'
as refuse matter thrown off in the process of manufacture, is to
control, it is quite clear that the importations in question are
not susceptible of this meaning." Id., 505. In other words,
"waste" is a byproduct of the manufacturing process. For Customs
purposes, something intentionally manufactured and not the
byproduct of a manufacturing process is not "genuine waste" as
the term is commonly defined and understood, but "artificial
waste" to which no duty benefit will appertain. Id.
Clearly, in this case, the polyester film sheets are not the
byproduct of a manufacturing process, i.e. "manufacturing waste"
as the phrase is interpreted in Explanatory Note 39.15, but the
product itself. That they may or may not have been once used for
the purposes for which they were manufactured has not been a fact
advanced or argued by counsel in this protest; no evidence having
been presented on this matter, we are at liberty to presume that
the subject goods may be virgin, manufactured for purposes other
than as material to be used in a remanufacturing process, having
their original quality and utility. As such, they are not waste.
Latimer v. U.S., 223 U.S. 501, 504 (1912).
Finally, we believe that counsel's argument, that the goods
must be waste because they are not useful in their condition as
imported for remanufacturing, is misplaced. We are guided by the
Customs Court decision in Federated Metals Corporation v. U.S.,
T.D. 49493 (1938). Aluminum alloy borings were in fact an
unintentional byproduct in the manufacture of aluminum alloy
castings and forgings. The borings could not be reintroduced
into the manufacturing process in their condition as imported.
The only use of the borings was for the purpose of remelting them
for recovery of the metals (aluminum and copper) contained
therein to make more alloy for castings and forgings. The
residue from the remelting process had no commercial value and
was discarded as useless. The court found that the borings were
properly classifiable as aluminum alloy articles eo nomine and
not aluminum scrap, citing, among other cases, Patton, supra, and
Latimer, supra, on the meaning of "waste." Substituting the
facts of this protest for the facts in Federated Metals, supra,
and doing so most favorably to the protestant, we would have
polyester film blend of PET and PVDC that cannot be reintroduced
into the manufacturing process in its imported form. The only
use to which the protestant puts the material is to recover the
PET for reuse in making more polyester film, the PVDC being
residue from the recovery process that is discarded as useless.
Juxtaposed to this protest, we believe that Federated Metals
teaches us that the subject goods are not "waste" for purposes of
classification under heading 3915, HTSUSA. In any event, that
the thermoplastic film is "not usable for its intended use [in
this importation] * * * as a plastic for remanufacture"
disqualifies it from classification under heading 3915, HTSUSA.
Since the goods are neither self-adhering nor cellular, they
are not described under either heading 3919 or 3921, HTSUSA. Had
evidence shown that PET predominated by weight, consistent with
note 4 to the chapter, we would classify the subject goods under
subheading 3920.62.0000, HTSUSA.
For all of the foregoing reasons, we are of the opinion that
polyethylene terephthalate-polyvinylidene chloride film is
properly classifiable under subheading 3920.69.0000, HTSUSA.
HOLDING:
The protest should be denied.
Polyethylene terephthalate-polyvinylidene chloride film is
properly classifiable under subheading 3920.69.0000, HTSUSA,
other sheets, film of plastics; of other polyesters; of other
polyesters. Articles classified under this subheading for the
year 1990 were subject to a general rate of duty of 4.2 percent
ad valorem.
Since the rate of duty for the independently arrived at
classification is the same as the rate for the liquidated
classification, you are instructed to deny the protest in full.
A copy of this decision should be attached to the Customs
Form 19 and mailed to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director