CLA-2 CO:R:C:F 955387 ALS
District Director of Customs
200 East Bay St.
Room 121
Charleston, SC 29401
RE: Request for Further Review of Protest 1601-93-100213, Dated
September 24, 1993, Concerning Irregularly Shaped Pieces of
Plastics
Dear Ms. Pollock:
This ruling is on a protest that was filed against your
decision of August 27, 1993, in the liquidation of an entry
covering the referenced product. Sample chips were provided.
FACTS:
Irregular shaped chips of plastics composed of polypropylene
and polyethylene, where polypropylene predominates by weight.
ISSUE:
IS the article under consideration plastics in primary form
or waste?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (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 headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order. - 2 -
In reviewing the headings eligible for classification of the
article, we noted competing headings in Chapter 39, HTSUSA. The
appropriate heading for the article was found to be dependent on
whether it was plastics in primary form or, as suggested by the
protestant, waste.
In our analysis we considered Legal Notes 6 and 7 to Chapter
39, HTSUSA. We found that Heading 3915, HTSUSA, as suggested by
the importer, does not apply to waste, parings and scrap of a
single thermoplastic material transformed into primary forms
according to Note 7. We also found that heading 3902 covers
polymers of propylene or of other olefins, in primary form. Note
6 defines primary forms as (a) Liquids and pastes, including
dispersion (emulsion and suspensions) and solutions; and (b)
Blocks of irregular shape, lumps, powders (including molding
powders), granules, flakes and similar bulk forms.
The sole question thus appears to be whether the chips under
consideration are in a primary form. In order to resolve this
matter the Customs Laboratory analyzed the chips. Although the
importer stated they were composed solely of polypropylene, the
lab found that they were a copolymer of polypropylene and
polyethylene plastics in with the polypropylene predominating by
weight. The articles under consideration are a single
thermoplastic material.
We next considered the Explanatory Notes (EN) to the
Harmonized System which represent the view of the international
classification experts. We noted that EN 39.15, which covers
waste, parings and scrap, of plastics classifiable in heading
3915, specifies that the products of such heading may consist of
broken or worn articles of plastics, not usable for their
original purposes. The Note, however, goes on to state that the
heading does not apply to waste, parings and scrap of a single
thermoplastic material, transformed into primary forms.
Based on this Explanatory Note and the fact that the chips
are a single thermoplastic in primary form, we have concluded
that the instant plastic chips are not "waste" in a tariff sense.
HOLDING:
Irregular shaped chips of plastics composed of polypropylene
and polyethylene, where polypropylene predominates by weight are
a single thermoplastic material and are classifiable in
subheading 3902.30.0000, HTSUSA. Merchandise so classified are
subject to a general rate of duty of 2.2›/kg plus 7.7 percent ad
valorem.
- 3 -
Since the rate of duty under the classification indicated
above is more than the liquidated rate, you are instructed to
deny the protest in full.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division