CLA-2 CO:R:C:F 952836 EAB
John A. Bessich, Esquire
Gibney, Anthony & Flaherty
One Cross Island Plaza
Rosedale, New York 11422
Re: Classification of polytetrafluoroethylene (PTFE); scrap;
087246; 088471; 951875
Dear Mr. Bessich:
This is in reply to your letter dated September 16, 1992, on
behalf of Shamrock Technologies, Inc., in which you request a
binding ruling on the classification of PTFE scrap under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The merchandise to be classified is described as PTFE scrap
or waste consisting of rejected or discarded product in the forms
of machine turnings, tube pieces, blocks, trimmings, soft
extrudate, preforms, extrusion pieces ("heels and cones"), hard
extrudate, white clear pieces, tape scrap, powders and granules.
Of the five distinct samples that you provided to two of
Customs National Import Specialists, three have been reported out
to this Office to be shavings of PTFE, one has been reported out
to be flat, irregularly shaped chips, and the fifth has been
described as powder mixed with irregularly shaped lumps.
None of the PTFE imported by Shamrock is sold in the condition
as imported. Some of importations contain contaminants such as
oil, dirt or other unwanted material that must be physically
separated, leaving clean PTFE shapes that, along with the shapes
that did not require such cleaning, are ground, irradiated and
further, finer ground to manufacture different grades of dry, fine
PTFE powders.
ISSUE:
What is the classification of PTFE scrap?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
legal framework in which merchandise is to be classified under the
HTSUSA. GRI 1 requires that classification be determined first
according to the terms of the headings of the tariff and any
relative section or chapter notes and, unless otherwise required,
according to the remaining GRI's taken in order.
Heading 3904, HTSUSA, describes in part polymers of
halogenated olefins in primary forms. Subheading 3904.61.00
describes "fluoropolymers: polytetrafluoroethylene (PTFE)."
Heading 3915 describes waste, parings and scrap of plastics,
and subheading 3915.90 identifies waste, parings and scrap of
plastics, other than ethylene, styrene and vinyl chloride.
Two legal notes to chapter 39 pertain. Note 6(b) defines
"primary forms" to include blocks of irregular shape, lumps,
powders, flakes and similar bulk forms. Note 7 provides that
heading 3915 does not apply to waste, parings and scrap of a single
thermoplastic material, transformed into primary forms, and this
mandatory classification scheme is stressed in the Explanatory
Notes to the chapter. Explanatory Note 39.15 informs us that
merchandise classifiable under heading 3915 may consist either of
broken or worn articles of plastics clearly not usable for their
original purposes, or of manufacturing waste (shavings, dust,
trimmings, etc.) and although some "waste" can be reused and
therefore should remain classifiable under heading 3915 rather than
elsewhere, "waste, parings and scrap of a single thermoplastic
material, transformed into primary forms," is not "waste" in a
tariff sense, but is a polymer classifiable under one of headings
3901-3914. See also HR 089064 (November 4, 1991).
As you know, in HR 951875 (September 12, 1992), Customs held
PTFE plastics that had not been transformed into primary forms to
be classifiable under subheading 3915.90, HTSUSA.
Where plastics are in a primary form in their condition as
imported, the presence of contaminants does not qualify the plastic
as waste of heading 3915. See HR 087246 (October 30, 1990) and HR
088475 (May 10, 1991).
We find that the three samples that are PTFE shavings are
waste of heading 3915 and that the PTFE powder and PTFE powder
mixed with irregularly shaped lumps are both in primary forms to
be classified under heading 3904.
HOLDING:
PTFE scrap shavings are classifiable under subheading 3915.90,
HTSUSA, a provision for waste, parings and scrap, of plastics; of
other plastics and entitled to be entered under column 1 free of
duty.
PTFE powder and powder mixed with irregularly shaped lumps are
classifiable under subheading 3904.61, a provision for polymers of
vinyl chloride or of other halogenated olefins, in primary forms;
fluoropolymers; polytetrafluoroethylene (PTFE), dutiable at the
column one general rate of 1.5 cents/kilogram plus 5.7 percent ad
valorem.
Sincerely,
John Durant, Director