CLA-2 CO:R:C:F 953692 EAB

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

Re: Classification of polytetrafluoroethylene (PTFE); 952836

Dear Mr. Bessich:

This is in reply to your letter dated April 8, 1993, on behalf of Shamrock Technologies, Inc., in which you request clarification of our decision in HRL 952836 (February 19, 1993).

FACTS:

It was our intent in HRL 952836, supra, to classify under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), five distinct samples that you provided to two of Customs National Import Specialists. You have brought to our attention the fact that we omitted the sample that had been reported out to be flat, irregularly shaped chips of PTFE.

None of the PTFE at issue is sold in the condition as imported. Separated from contaminants or other unwanted material, the irregularly shaped chips of PTFE will be ground, irradiated and further, finer ground to manufacture different grades of dry, fine PTFE powders.

ISSUE:

What is the classification under the HTSUSA of irregularly shaped chips of PTFE?

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 HR 089064 (November 4, 1991).

As you know, in HR 951875 (September 12, 1992), Customs held PTFE plastics that had not been transformed into primary forms to be classifiable under subheading 3915.90, HTSUSA.

Where plastics are in a primary form in their condition as imported, the presence of contaminants does not qualify the plastic as waste of heading 3915. See HR 087246 (October 30, 1990) and HR 088475 (May 10, 1991).

We find that the irregularly shaped chips of PTFE are in a primary form and classifiable under heading 3904.

HOLDING:

Irregularly shaped chips of PTFE are classifiable under subheading 3904.61, a provision for polymers of vinyl chloride or of other halogenated olefins, in primary forms; fluoropolymers; polytetrafluoroethylene (PTFE), dutiable at the column one general rate of 1.5 cents/kilogram plus 5.7 percent ad valorem.

Sincerely,

John Durant, Director