CLA 2 CO:R:C:F 950404 ALS
Ms. Beth C. Brotman
Siegel, Mandell and Davidson, P.C.
1 Astor Plaza
1515 Broadway, 43rd Floor
New York, New York 10036
RE: Synthetic Wood Pulp (SWP~) from Japan
Dear Ms. Brotman:
This is in reference to your request of August 27, 1991,
submitted on behalf of Mitsui Petrochemicals (America) Ltd., for
a binding ruling on synthetic wood pulp (SWP~). Your request
was referred to this office for consideration. A sample of the
product was submitted.
FACTS:
SWP~ is a polyolefin synthetic pulp composed of a highly
fibrillated fiber product with either a polyethylene or
polypropylene base. The SWP~, marketed under the tradename
"Fybrel" is imported in the form of wet sheets measuring
approximately 25 inches by 27 inches. Counsel notes that the
product has approximately 30 to 60 percent moisture content and
an average fiber length of between 0.6 and 2.1 min. The product
is used for a variety of purposes. It can be used on
conventional paper making machines either alone or in
combination with wood pulps. It can be placed in a slurry form
on a moving wire screen where a combination of suction, heat and
pressure remove the water and compress the individual fibers
into a continuous sheet. The sheet is formed and obtains its
strength from the interlinking of the individual fibers. It
can be used as a binding agent in nonwoven materials by
combining it with textile fibers and subjecting the resulting
mass to heat, which causes the fibers to melt. Counsel has
alternatively suggested classification under subheading 3920.10
or 3920.20, HTSUSA, depending on the base of the product.
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ISSUE:
Is synthetic wood pulpclassifiable under the provisions for
"Other plates, sheets..of plastic, noncellular and not
reinforced, laminated, supported or similarly combined with
other materials in Heading 3920, Harmonized Tariff Schedules of
the United States Annotated (HTSUSA)?
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the
goods and if the heading and legal notes do not otherwise
require, the remaining GRI's are applied, taken in order.
In considering the headings and subheading under which the
subject article may be classified, we note three possibilities.
Subheading 3901.20 or 3902.10, HTSUSA, depending on whether the
article has a polyethylene or polypropylene base and provided it
is a polymer in its primary form. Subheading 3920.10 or
3920.20, HTSUSA, depending again on the nature of its base, if
the article was a sheet of such polymers. Alternatively,
subheading 3926.90, HTSUSA, a provision for other plastics, if
the productSnot classifiable under the other noted subheadings.
'
In considering the applicability of the various subheadings
we note that SWPTM is a form of polyethylene or polypropylene
resin. Since these pol~mers, in their form at the time of
importation, have been extruded into fibers, chopped and
pressed, we believe that they can no longer be considered as
polymers in their primary form. Therefore, they are not
classifiable under subheadings 3901.20 or 3902.10, HTSUSA.
In considering the other subheading alternatives, we note
that subheadings 3920.10 and 3920.20, HTSUSA, which counsel has
suggested, refer to, as herein pertinent, sheets of polymers or
ethylene or propylene. The remaining subheading to be
considered, 3926.90, HTSUSA, generally provides for other
articles of plastics. In considering these two groups of
subheadings we normally would chose the former in accordance
with GRI 3(a) since it provides a more specific description of
the product.
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Heading 3920, HTSUSA, however, is not generally considered
applicable to the subject type products, since they are considered
intermediate products. Thus, it would not appear that classification
under this heading would be appropriate. Counsel, however, has noted
that the Explanatory Notes (EN), in EN 39.20, specifically provide
that this heading "covers synthetic paper pulp consisting of sheets on
non-coherent polyethylene or polypropylene fibres (fibril) of an
average length of about 1 mm and generally containing 50% moisture."
Since the EN's represent the view of the international classification
experts and since syn,thetic wood pulp and synthetic paper pulp are
the same thing, EN 39.20 seems to specifically cover the subject
product and, therefore, counsel's classification suggestion appears to
have merit.
..
We, however, believe that the poss~ classification under heading
3920, HTSUSA, presents several problems. While EN 39.20 would seem to
cover the SWPTM we note that the EN specifies that the product must be
in sheet form. While the SWPTM is packaged in flat form to facilitate
transportation, we are not certain that this form can be considered
sheets. In reference to The American Heritage Dictionary, (Second
College Edition) we note that a sheet is a rectangular mass or piece
of material and that a rectangle is parallelogram with a right angle.
We note that the sample of SWPTM, while it does generally appear
rectangular in shape, has irregular edges and does not have any right
angles. Thus, it appears that this product does not meet the
definition of sheets.
We are also concerned that if the product, with irregular edges,
is considered asheet, there would be continuing problems in
determining when the irregular edges became so irregular as to make
the product something other than a sheet. It appears that such an
uncertainty could cause a problem for Customs and that the importation
of the importer's product could be delayed pending a determination of
the matter.
We, however, understand that the subject product normally comes
with irregular edges. This is due to the nature of the manufacturing
process, the relative brittleness of the product, and the result of
the transportation and handling process. These characteristics are
true of all synthetic paper pulp. We also understand that this
product, which has the general appearance of a rectangle, would
usually have the same relative degree of irregular edges. Further
since this is an intermediate product and will always be mixed with
other ingredients subsequent to
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importation, we understand that it would not normally have
worked edges so as to require classification elsewhere in
Chapter 39, HTSUSA, as indicated in EN 39.20. In light of the
above, we believe it is reasonable to conclude that heading
3920, HTSUSA, specifically covers the subject product.
Since heading 3920 specifically covers the subject product,
consideration of the applicability of subheading 3926.90,
HTSUSA, is not necessary.
Polyolefin synthetic pulp, referred to synthetic wood pulp
(SWP~), composed of a highly fibrillated fiber product imported
in form of wet sheets measuring approximately 25 inches by 27
inches, with approximately 30 to 60 percent moisture content and
an average fiber length of between 0.6 and 2.1 mm is
classifiable under Heading 3920, HTSUSA. If the pulp has a
polyethylene base it is classifiable under subheading
3920.10.00, HTSUSA, and is subject to a general rate of duty of
4.2 per cent ad valorem. If the pulp has a polypropylene base
it is classifiable under subheading 3920.20.00, HTSUSA, and is
subject to a general rate of duty of 4.2 per cent ad valorem.
Your sample is being returned under separate cover.
Sincerely,
John Durant, Director