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HQ 087246


October 30, 1990

CLA-2 CO:R:C:G 087246 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3908.10.0000, 3915.90.0000

District Director of Customs
127 North Water Street
Ogdensburg, New York 13669

RE: Request for Further Review of Protest 0712-89-000351, dated April 13, 1989, Concerning
Polyamide 6,6 in various forms

Dear Mr. Dietzel:

This ruling is on a protest that was filed against your decisions in the liquidations of January 20, 27(2), February 3(3) and 10(2), 1989.

FACTS:

The articles under consideration are polyamide 6,6 in various forms. The forms are described in documents of record as:

1. Polyamide 6,6 flake in the form of pellets or flakes, 2. Contaminated polyamide 6,6 flake in the form of pellets or flakes, which contains some contam inants,
3. Contaminated nylon ground chunk waste which is further described as "hunks of solid polyme r...gr ound only to
facili tate storage",
4. Contaminated nylon polymer fines which are further described as "almost entirely of a powder of 6,6 nylon" and,
5. Fused and tangled nylon extrusion wastes which is further described as solid fused polymer mixed with undrawn coarse polymer strands.

Although a copy of only one entry was provided with the protest and although all articles covered by the protest were not entered in each entry being protested, we understand that the entries being protested, in toto, do cover all of the above articles.

We understand that although the articles were liquidated as entered and the same products imported by other importers were entered and liquidated in the same manner, the importer is protesting the classification.

We also understand that no samples were included with the protest nor supplied when requested by the National Import Specialist. We, therefore, have relied on the description of the articles which was provided by the Canadian supplier thereof.

The articles are classifiable under subheading 3908.10.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or 3915.90.0000, HTSUSA, depending on whether or not they are considered polyamides in primary forms. All parties agree that one or both of the subheadings are applicable to the articles.

The articles, if an "originating good" imported from Canada, would be subject to a free rate of duty under subheading 3908.10.0000, HTSUSA, pursuant to the United States - Canada Free Trade Agreement (FTA). If the articles are products of Canada, whether or not originating goods under the FTA, and are classifiable under subheading 3915.90.0000, HTSUSA, they would be free of duty.

The protestant states that the articles are eligible for treatment under the (FTA).

ISSUE:

1. Are the articles under consideration polyamide 6,6 in one of its primary forms?

2. Are the articles under consideration eligible for the benefits of the FTA?

LAW AND ANALYSIS:

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 reviewing the headings eligible for classification of the articles, we noted competing headings in Chapter 39. The appropriate heading for any one of the articles was found to be - 4
dependent on whether that particular article was polyamide 6,6 in one of its primary forms or whether it was polyamide 6,6 in another form. We noted that subheading 3908.10.0000, HTSUSA, provides for several types of polyamides, including 6,6 in primary forms. We also noted subheading 3915.90.0000, HTSUSA, provides for waste, parings and scrap, of plastics. The protestant agrees that these subheadings are applicable to the articles it imported but it does not agree on the application of a particular subheading to particles articles.

In our analysis of the importer's claim we considered Legal Notes 6 and 7 to Chapter 39, HTSUSA. We found that Heading 3915, HTSUSA, does not apply to waste, parings and scrap of a single thermoplastic material transformed into primary forms (heading 3901 to 3914) according to Note 7. We also found that heading 3908, HTSUSA, covers polyamide in primary forms which are described in Legal Note 6 as (a) Liquids and pastes, including dispersions (emulsions and suspensions) and solution 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 each of the various forms of polyamide 6,6 is a primary form of such polyamide. While the protestant states that at least some of the articles are not fit for the same uses as other primary material, because of contaminant and size questions, we find no provision in the HTSUSA which establishes a requirement that polyamide in any particular form must be suitable for direct use in the same types of manufacturing processes utilized for first quality polyamides. The polyamides will ultimately be used for the same purposes as virgin polyamides.

We considered the description of the 5 products which are covered by the subject protest and noted that those described under numbers 1-4 in the facts section hereof are described using the terminology flakes, chunks and powders which are primary forms, as stated in Legal Note 6. The description of article number 5 is not sufficiently detailed for us to determine whether this particular article meets the definition of a primary form. If it does it would be classified in the manner specified for the other articles. If it does not meet that definition it would be classified under the subheading covering wastes, parings and scrap.

The products, however classified, satisfy the requirements of General Note 3(c)(vii)(R)(7)(aa), HTSUSA, which is the rule - 4 -
for determining whether products of headings in Chapter 39, HTSUSA, are "originating" in the territory of Canada and eligible for treatment under the FTA. The protestant has submitted Customs Form (CF) 353, Certificate of Origin, in support of its claim. Since the CF 353 has been submitted and accepted, we presume that your records confirm that the required change in classification for eligibility under the FTA has taken place.

HOLDING:

Polyamides numbered 1-4, supra, are classifiable under subheading 3908.10.0000, HTSUSA, and polyamide numbered 5, supra, is classifiable under subheading 3915.90.0000, HTSUSA. Since the rate of duty under the subheadings indicated above is the same or more than the liquidated rate, you are instructed to deny the protest in full except as hereafter noted.

Since these articles are goods originating in Canada, in accordance with the FTA, and the protestant has filed appropriate documentation confirming compliance with the provisions thereof and section 10.307, Customs Regulations (19 CFR 10.307), you should reliquidate the protested entries so that the importer may be given the benefit of the special rate of duty applicable to such articles which are of Canadian origin. Your action in this regard should be limited to articles subjected to the general rate of duty and liquidated entries which have not already been reliquidated to give the importer the benefit of the special rate.

A copy of this ruling should be attached to Form 19 Notice of Action furnished the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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