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HQ 955387




September 28, 1994

CLA-2 CO:R:C:F 955387 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3902.30.0000

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.

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

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