CLA-2 CO:R:C:F 089064 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-
100038, dated January 24, 1991, concerning plastic
flakes; plastics; primary form; polyesters; polyester
blends; waste
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.
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 [than
ethylene, styrene or vinyl chloride], free of duty. The goods
were imported on various dates upon break-bulk pallets. Customs
reclassified all goods under subheading 3907.99.0000, HTSUSA, as
other polyesters in primary forms, other than unsaturated, other
than polybutylene terephthalate; the rate of duty was advanced to
3.1 per kilogram plus 9 percent ad valorem.
Protestant seeks reclassification of the goods to subheading
3915.90.0000, HTSUSA, providing as stated above. Per counsel,
protestant states that the merchandise "is a mixture of
thermoplastic materials reduced to flake form * * * rendered from
defective cronar film clearly not usable for its intended purpose
[as] a plastic for remanufacture." Cronar film consists of
polyethylene terephthalate (PET) and polyvinylidene chloride
(PVDC). In the remanufacturing process, PVDC is "purged * * *
because [its] presence * * * makes the [flakes] unusable as a
plastic for remanufacture." The extracted PET is "processed into
pellets for use in the manufacture of plastic articles."
Counsel for protestant states that the imported goods are in
primary form, but that they are a mixture of two polymers and,
therefore, properly classifiable under subheading 3915.90.0000,
HTSUSA.
Customs laboratory analysis found the goods to be flakes
consisting solely of a saturated polyester plastic material.
ISSUE:
What is the proper classification under the HTSUSA of
plastic flakes?
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 6, chapter 39, for purposes of headings 3901-3914,
lists "primary forms" as liquids and pastes, including
dispersions, blocks of irregular shape, lumps, powders, granules,
flakes and similar bulk forms. Note 7 to the chapter emphasizes
that heading 3915 does not apply to waste, parings and scrap of a
single thermoplastic, transformed into primary forms, and directs
one to headings 3901-3914. Very simply, a single thermoplastic
material in primary form is not "waste" in a tariff sense, i.e.,
fitting the description in heading 3915. A single thermoplastic
in primary form is mandatorily classified under any of headings
3901-3914.
Based upon Customs laboratory analysis of the material
submitted, we conclude that the subject flakes are a single
thermoplastic in primary form that is properly classifiable under
subheading 3907.99.0050, HTSUSA.
HOLDING:
The protest should be denied.
Saturated polyester flakes are a plastic in primary form
properly classifiable under subheading 3907.99.0050, HTSUSA, a
provision for other polyesters in primary forms, other
polyesters, other, other. Articles classified under this
subheading in 1990 were subject to a general rate of duty of 3.1
per kilogram plus 9 percent ad valorem.
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