CLA-2 CO:R:C:F 088475 ALS
Mr. Salvatore E. Caramagno
Attorney at Law
Ross and Hardies
888 16th Street, N.W.
Washington, D.C. 20006-4103
RE: Polyvinyl Chloride in Dust or Powder Form
Dear Mr. Caramagno:
This is in reference to your letter of January 9, 1991,
requesting the tariff classification of an article described as
polyvinyl chloride scrap. A sample was not provided.
FACTS:
The article under consideration is obtained when reactor
walls are scraped off after a production for polyvinyl chloride.
It is in a dust or powder form and, because of impurities, it
cannot be used for its original purpose as polyvinyl chloride
resin without further processing of the powder to remove the
impurities.
ISSUE:
Is the article under consideration polyvinyl chloride in
primary form?
LAW AND ANALYSIS:
Classification or merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), is governed by
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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 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
article, we noted, as suggested by counsel, competing headings in
Chapter 39, HTSUSA. It appears that the article would be
classifiable under subheading 3904.10.00, HTSUSA, if it were
polyvinyl chloride (PVC) in primary form or, as suggested by
counsel, subheading 3915.20.00, HTSUSA, as waste, paring and
scrap, of polymers of vinyl chloride.
Counsel refers to the article alternatively as scrap, waste,
and dust. These terms are defined in The American Heritage
Dictionary, Second College Edition, as follows:
Scrap - Discarded waste material, esp. metal suitable for
reprocessing.
Waste - A useless or worthless by-product.
Dust - Fine, dry particles of matter.
Counsel also refers to the article as "manufacturing waste"
and indicates that it would be treated commercially as waste, but
no confirmation thereof is provided. We note that such
terminology, in any case, would appear to be in conflict with the
dictionary definition of the term waste since, as stated by
counsel, "the dust has value".
In considering counsel's arguments we considered Legal Notes
6 and 7 to Chapter 39, HTSUSA. Legal Note 7, as stated by
counsel, excludes waste, parings and scrap of a single
thermoplastic material transformed into primary forms. Legal
Note 6, HTSUSA defines primary forms, as hereto pertinent, as
"...(b) Blocks of irregular shape, lumps, powders (including
moulding powders) granules, flakes and similar bulk forms."
The sole question thus appears to be whether the PVC under
consideration is a primary form of polymers of vinyl chloride.
Counsel states that the article is not fit for its intended
purposes as primary form material, without further processing or
remanufacture, because of contaminants or impurities therein, and
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that it should not be considered as such. We, however, find no
provision in the HTSUSA which establishes a requirement that PVC,
whether being imported as a dust, powder, etc. must be suitable
for direct use in the same type of manufacturing process
initially utilized for first quality PVC. The PVC with
impurities will ultimately be used for the same purposes as
virgin PVC. The impurities are the only difference between the
pure and contaminated PVC. It would seem that the PVC, which was
in primary form when initially used, is now a powder, remains in
primary form and has not been altered by the contaminants.
Also, as noted in Headquarters Ruling Letter (HRL) 087246 of
October 30, 1990, regarding contaminated polyamide flakes, the
presence of contaminants does not exclude the article from
classification as a primary form. We, therefore, believe that
the PVC, in accord with Legal Note 7, is excluded from
classification under subheading 3915.30.10, HTSUSA, regardless of
what label is attached to it. Pursuant to Legal Note 6, the
article would be classifiable in Heading 3901 - 3914, HTSUSA. We
do not believe that the arguments as to how the articles might
have been classified under the Tariff Schedules of the United
States Annotated (TSUSA), are pertinent to the classification
under the HTSUSA.
While counsel has not specifically requested us to consider
the applicability of the United States - Canada Free Trade
Agreement (FTA), we note that if the article is an "originating
good" imported from Canada or if it is a product of Canada,
whether or not originating goods under the FTA, it might be
eligible for a reduced rate of duty upon compliance with the
requirements of General Note 3(c)(vii), HTSUSA.
HOLDING:
The subject polyvinyl chloride is a primary form of the
polymers of vinyl chloride and is classifiable under subheading
3904.10.00, HTSUSA, and dutiable at a general rate of duty of
10.1 per cent ad valorem.
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If the article is goods originating in Canada or a product
of Canada, in accordance with the FTA, it may be eligible for a
reduced rate of duty, 4 per cent ad valorem, upon compliance by
the importer with the provisions of the FTA and section 10.301 et
seq., Customs Regulations (19 CFR 10.301 et seq.).
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: AD NYSeaport
NIS Mazzola
088475 Polyvinyl chloride in powder form with impurities
ALSARASKY 5/8/91