CLA-2 CO:R:C:F 953692 EAB
John A. Bessich, Esquire
Gibney, Anthony & Flaherty
One Cross Island Plaza
Rosedale, New York 11422
Re: Classification of polytetrafluoroethylene (PTFE); 952836
Dear Mr. Bessich:
This is in reply to your letter dated April 8, 1993, on behalf
of Shamrock Technologies, Inc., in which you request clarification
of our decision in HRL 952836 (February 19, 1993).
FACTS:
It was our intent in HRL 952836, supra, to classify under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
five distinct samples that you provided to two of Customs National
Import Specialists. You have brought to our attention the fact
that we omitted the sample that had been reported out to be flat,
irregularly shaped chips of PTFE.
None of the PTFE at issue is sold in the condition as
imported. Separated from contaminants or other unwanted material,
the irregularly shaped chips of PTFE will be ground, irradiated and
further, finer ground to manufacture different grades of dry, fine
PTFE powders.
ISSUE:
What is the classification under the HTSUSA of irregularly
shaped chips of PTFE?
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 irregularly shaped chips of PTFE are in a
primary form and classifiable under heading 3904.
HOLDING:
Irregularly shaped chips of PTFE 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