CLA-2 CO:R:C:F 951875 EAB

John A. Bessich, Esquire
Gibney, Anthony & Flaherty
One Cross Island Plaza
Rosedale, New York 11422

Re: Classification of polytetrafluoroethylene (PTFE) scrap; 3904

Dear Mr. Bessich:

This is in reply to your letter dated April 16, 1992, on behalf of Shamrock Technologies, Inc., in which you request a binding ruling on the classification of PTFE scrap under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise to be classified is represented in five samples. Exhibit A is identified as white sintered tubing scrap in various length and of diameters exceeding 1 mm. Exhibit B is described as pigmented sintered tubing scrap; it is similar to Exhibit A except in respect to coloring. Exhibit C is identified as extrusion waste consisting of white heels and cones, all of which appear to be irregularly shaped chunks. Exhibit D is identified as white tails and consists of one strip and several irregularly shaped chunks. Exhibit E is identified as hard rod shavings and consists of one C-shaped piece and shavings.

None of the PTFE imported by Shamrock is sold in the condition as imported. All is used to manufacture different grades of dry, fine PTFE powders. Exhibits A-E are ground, irradiated and further, finer ground to make the PTFE powders.

ISSUE:

What is the classification of PTFE scrap?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Heading 3904, HTSUSA, describes in part polymers of halogenated olefins in primary forms. Subheading 3904.61.00 describes "fluoropolymers: polytetrafluoroethylene (PTFE)."

Heading 3915 describes waste, parings and scrap of plastics, and subheading 3915.90 identifies waste, parings and scrap of plastics, other than ethylene, styrene and vinyl chloride.

Two legal notes to chapter 39 pertain. Note 6(b) defines "primary forms" to include blocks of irregular shape, lumps, powders, flakes and similar bulk forms. Note 7 provides that heading 3915 does not apply to waste, parings and scrap of a single thermoplastic material, transformed into primary forms, and this mandatory classification scheme is stressed in the Explanatory Notes to the chapter. Explanatory Note 39.15 informs us that merchandise classifiable under heading 3915 may consist either of broken or worn articles of plastics clearly not usable for their original purposes, or of manufacturing waste (shavings, dust, trimmings, etc.) and although some "waste" can be reused and therefore should remain classifiable under heading 3915 rather than elsewhere, "waste, parings and scrap of a single thermoplastic material, transformed into primary forms," is not "waste" in a tariff sense, but is a polymer classifiable under one of headings 3901-3914. See also HQ 089064 (November 4, 1991).

We find that none of the samples has been transformed into a primary form; rather, taken together, the samples represent broken or worn articles of plastic clearly not usable for their original purposes, or manufacturing waste constituted of shavings, dust, trimings or lumps or blocks of irregular shape.

HOLDING:

PTFE scrap in the forms of the five samples at issue here is not a single thermoplastic that has been transformed into primary form. It is classifiable under subheading 3915.90.0000, HTSUSA, a provision for waste, parings and scrap, of plastics; of other plastics and entitled to be entered under column 1 free of duty.

Sincerely,

John Durant, Director