CLA-2 CO:R:C:F 950490 EAB
District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202
Re: Application for Further Review of Protest No. 0901-91-
1-00211, dated June 24, 1991, concerning waste of
plastics; waste; scrap; primary form
Dear Sir:
This is a decision on a protest filed June 24, 1991, against
your decision in the classification of merchandise liquidated
June 7, 1991 and June 21, 1991.
FACTS:
The protestant entered all goods in subheading 3915.90.0000,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), a provision for waste and scrap of plastics, other [not
polymers of ethylene, styrene or vinyl chloride], free of duty.
Customs reclassified all goods under subheading 3902.10, HTSUSA,
as a polymer of polypropylene in primary form. The goods
qualified for special duty treatment under the U.S.-Canada Free
Trade Agreement and were liquidated at the rate of duty of 5
percent ad valorem.
A sample of the merchandise has been provided to this office
for purposes of visual examination. It consists of desired
polypropylene chips of differing colors (red, blue, black, green
and white) obtained by crushing or chopping up discarded battery
cases, mixed with impurities identified as wood chips, floor
sweepings, phenolic battery cell separators and other foreign
matter, all collected by the protestant for its purposes, in this
case, as a seller of recyclable plastics.
Independent technical analysis submitted to this office by
and on behalf of the protestant finds that the impurities must be
removed by further processing before the product can be
considered usable in recycling applications. Such further
processing would include washing, chopping and crushing, second
washing and degreasing, thermomelting and compounding, coloring
and chemical stabilization with extenders and anti-oxidants,
extruding, cutting and, sizing and drying.
A second independent technical analysis submitted to this
office by and on behalf of the protestant concludes that the
subject merchandise is not "virgin material," as that phrase is
defined in Society of the Plastics Industry, Plastics Engineering
Handbook of the Society of the Plastics Industry, Inc., 5th
Edition, to wit: "Plastic resin or compound that has not been
processed except to prepare it for its intended use."
Finally, Customs has liquidated similar merchandise for the
protestant under the Tariff Schedules of the United States as
plastic waste and scrap n.s.p.f. and, more recently, under the
claimed subheading at this port.
ISSUE:
What is the proper classification under the HTSUSA of a dry
mixture of polypropylene chips of differing colors (red, blue,
black, green and white) obtained by crushing or chopping up
discarded battery cases, wood chips, floor sweepings, phenolic
battery cell separators and other foreign matter, to be subjected
to further remanufacturing processes to make it usable as an
article of plastic to be recycled?
LAW AND ANALYSIS:
The tariff classification of merchandise under the HTSUSA is
governed by the principles set forth in the General Rules of
Interpretation (GRIs) and, in the absence of special language or
context which otherwise requires, by the Additional U.S. Rules of
Interpretation. The GRIs and the Additional U.S. Rules of
Interpretation are part of the HTSUSA and are to be considered
statutory provisions of law for all purposes. GRI 1 requires
that classification be determined according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes and, unless otherwise required, according to the
remaining GRIs taken in order.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System represent the official
interpretation of the Customs Cooperation Council on the scope of
each heading; although neither binding upon the contracting
parties to the Harmonized System Convention nor considered to be
dispositive interpretations, they should be consulted on the
proper scope of the System.
Note 6, chapter 39, for purposes of headings 3901-3914,
lists "primary forms" as liquids and pastes, including
dispersions, blocks of irregular shape, lumps, powders, granules,
flakes and similar bulk forms. Note 7 to the chapter emphasizes
that heading 3915 does not apply to waste, parings and scrap of a
single thermoplastic, transformed into primary forms, and directs
one to headings 3901-3914.
Heading 3915, HTSUSA, describes waste, parings and scrap of
plastics.
Explanatory Note 39.15 states that the products of heading
3915 may consist of broken or worn articles of plastics, clearly
not usable for their original purposes.
We find that the subject merchandise is not composed of a
single thermoplastic material that has been "transformed into" a
primary form. Dismissing the actual collection and packaging of
the subject goods as irrelevant, the only meaningful labor
expended upon the plastic substance in the dry mixture has been
the breaking of plastic battery cases into small pieces. We are
of the opinion that the plastic in the mixture has not been
transformed into primary form and will not be until it is
subjected to further processing that would include washing;
chopping and crushing; second washing and degreasing;
thermomelting and compounding; coloring and chemical
stabilization with extenders and anti-oxidants; extruding;
cutting; and, sizing and drying. We find, therefore, that Note
7, Chapter 39, HTSUSA, does not operate to require that the
subject merchandise fall to be classified under heading 3902.
Based upon our visual examination of the material submitted,
we conclude that the subject goods consist of a mixture of broken
articles of plastics (battery cases) clearly not usable for their
original purposes. See Explanatory Note 39.15, HTSUSA. Pursuant
to GRI 1, we are of the opinion that the subject goods are
specifically described by heading 3915 as waste of plastics.
Since the plastic in the waste is a polymer of polypropylene, we
find that the subject goods are classifiable under subheading
3915.90, HTSUSA.
HOLDING:
Polypropylene chips of differing colors (red, blue, black,
green and white) obtained by crushing or chopping up discarded
battery cases mixed with wood chips, floor sweepings, phenolic
battery cell separators and other foreign matter that must be
removed by further extensive processing in order to make an
article of plastic suitable for recycling is properly
classifiable under subheading 3915.90, HTSUSA, a provision for
waste of plastics, other. Articles classified under this
subheading in 1991 were to have been entered free of duty.
Since reclassification of the merchandise as indicated above
will result in a lower rate of duty than as liquidated, you are
instructed to allow the protest in full.
A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division