HQ 954159
September 13,1993
CLA-2 CO:R:C:F 954159 JGH
Mr. Jan A. Van Hummel
ISCOM
P.O. Box 822546
Dallas, Texas 75382-2546
RE: Classification of Atactic Polypropylene - Reconsideration
Dear Mr. Van Hummel:
Your letter of May 12, 1993, requests a reconsideration of
Headquarter's decision (HQ) 952523, dated October 26, 1992, which
was a reconsideration of HQ 951972, dated August 17, 1992; both
decisions dealt with the classification of atactic polypropylene
in the Harmonized Tariff Schedules of the United States (HTSUS).
FACTS:
Atactic polypropylene (APP) is described as a by-product
generated during the production of polypropylene. It is used as
a material in the manufacture of roofing membranes, caulks,
sealants and adhesives. Fully polymerized polypropylene is
stereospecific and crystalline in structure, while APP is random
in structure and amorphous.
In the first decision (951972), it was pointed out that
polymers of polypropylene classifiable as primary forms in
heading 3902 include all three recognized forms: isotactic,
syndiotactic and atactic. It was further pointed out that Legal
Note 6(b), Chapter 39, defines primary forms as including blocks
of irregular shape, lumps, powders, flakes and similar bulk
forms. Legal Note 7 states that heading 3915, Waste, does not
include waste, parings and scrap of a single thermoplastic
material which had been transformed into a primary form.
Consequently, it was concluded that APP was a primary form of
polypropylene classifiable in subheading 3902.10, HTSUS.
In HQ 952523, the first reconsideration of HQ 951792, the
issue was whether APP as an undesirable by-product generated
during the production of isotactic polypropylene resin was a
waste. In the decision it was pointed out that, as APP was a - 2 -
thermoplastic resin in a primary form, Customs was bound by the
legal notes definitions to the plastics chapter when classifying
the material, and under the language of those notes, APP was a
primary form of polypropylene and not a waste.
ISSUE:
Classification of APP in the HTSUS.
LAW AND ANALYSIS:
In your latest submission you present arguments (along with
extensive background material) to support your contention that
APP is an undesirable, mostly unusable by-product, generated in
the production of the commercial product, isotactic
polypropylene, and not a plastic. However, even one of your
sources, Olefins, Polymers, (Polypropylene), lists atactic as one
form of the thermoplastic resin. Several opinions are given on
the unsuitability of APP and a sample is enclosed which you
describe as generated by Exxon and totally unsuitable for any
use. You interpret the Legal Note 1, Chapter 39, definition of
plastics as not including APP, an amorphous shape which you
maintain can not be transformed into another shape or product;
however, as pointed out the previous decisions, not only is APP a
recognized form of polypropylene, but Legal Note 6 includes the
amorphous form as one of the primary forms included in the term
"plastics".
We agree with your statement that a "material in a primary
form is not necessarily a primary product." However, in tariff
classification, unless there is a limiting tariff description of
the import, the material in all of its forms is classifiable
under the eo nomine provision, which in this case includes both
the desired form and the undesired by-product; thus, subheading
3902.10, HTSUS, includes all forms of polymers of polypropylene,
whether desired products or not; a view supported by the Organic
Chemistry definition you supplied :" In most cases, the
stereoregular isotactic and syndiotactic polymers are stronger
and stiffer because they form polymers with greater
crystallinity...Free radical polymerization is nearly random,
resulting in branched, atactic polymers." Thus, while atactic
may be an undesired form, it is, nonetheless, a form of the
resin.
In the alternative, you suggest that as APP is a wax-like
material, it is similar to petroleum waxes in subheading 2712.
However, Chapter 27, covers mineral fuel, oils, their
distillation products and bituminous substances. The waxes of
that heading are derived from petroleum oils, shale or bituminous
minerals; a source which would not include APP. In fact, the
Explanatory Notes to heading 2712 mention that the provision does
not include high polymer waxes such as polyethylene wax. - 3 -
In order for polypropylene in primary form to be an
artificial, synthetic or prepared wax of heading 3404, the
Explanatory Notes to 3404 state that the waxes must have: a
dropping point above 40 degrees C.; and a viscosity, when
measured by rotational viscometry, not exceeding Pa.s (or 10,000
cP) at a temperature of 10 degrees C. above their dropping point.
In addition the Explanatory Notes point out that the waxes must
have the following properties:
(a) take a polish when gently rubbed;
(b) their consistency and solubility depend largely on
temperature;
(c) at 20 degrees C.: (i) some are soft and kneadable (but
not sticky or liquid) (soft waxes), others are brittle
(hard waxes);
(d) at temperatures above 40 degrees C., they melt without
decomposing;
(e) just above their melting point they cannot easily be
drawn into threads:
(f) they are poor conductors of heat and electricity.
There is no indication in the file that atactic
polypropylene in issue satisfies the above definition of waxes.
If you can supply such evidence, we would consider the issue.
HOLDING:
Atactic polypropylene is classifiable as a primary form of
polypropylene in subheading 3902.10.00, HTSUS.
HQ 951972 and HQ 952523 are affirmed.
Sincerely,
John Durant, Director