CLA-2 CO:R:C:F 089064 EAB

District Director
U.S. Customs Service
200 East Bay Street
Charleston, South Carolina 29401-2611

Re: Application for Further Review of Protest No. 1601-1- 100038, dated January 24, 1991, concerning plastic flakes; plastics; primary form; polyesters; polyester blends; waste

Dear Sir:

This is a decision on a protest filed January 24, 1991, against your decision in the classification of merchandise liquidated November 2, 1990.

FACTS:

The protestant entered all goods in subheading 3915.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for waste of plastics, other [than ethylene, styrene or vinyl chloride], free of duty. The goods were imported on various dates upon break-bulk pallets. Customs reclassified all goods under subheading 3907.99.0000, HTSUSA, as other polyesters in primary forms, other than unsaturated, other than polybutylene terephthalate; the rate of duty was advanced to 3.1 per kilogram plus 9 percent ad valorem.

Protestant seeks reclassification of the goods to subheading 3915.90.0000, HTSUSA, providing as stated above. Per counsel, protestant states that the merchandise "is a mixture of thermoplastic materials reduced to flake form * * * rendered from defective cronar film clearly not usable for its intended purpose [as] a plastic for remanufacture." Cronar film consists of polyethylene terephthalate (PET) and polyvinylidene chloride (PVDC). In the remanufacturing process, PVDC is "purged * * * because [its] presence * * * makes the [flakes] unusable as a plastic for remanufacture." The extracted PET is "processed into pellets for use in the manufacture of plastic articles."

Counsel for protestant states that the imported goods are in primary form, but that they are a mixture of two polymers and, therefore, properly classifiable under subheading 3915.90.0000, HTSUSA.

Customs laboratory analysis found the goods to be flakes consisting solely of a saturated polyester plastic material.

ISSUE:

What is the proper classification under the HTSUSA of plastic flakes?

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 GRI's taken in order.

The Explanatory Notes to the Harmonized Commodity Descrip- tion 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. Very simply, a single thermoplastic material in primary form is not "waste" in a tariff sense, i.e., fitting the description in heading 3915. A single thermoplastic in primary form is mandatorily classified under any of headings 3901-3914.

Based upon Customs laboratory analysis of the material submitted, we conclude that the subject flakes are a single thermoplastic in primary form that is properly classifiable under subheading 3907.99.0050, HTSUSA.

HOLDING:

The protest should be denied.

Saturated polyester flakes are a plastic in primary form properly classifiable under subheading 3907.99.0050, HTSUSA, a provision for other polyesters in primary forms, other polyesters, other, other. Articles classified under this subheading in 1990 were subject to a general rate of duty of 3.1 per kilogram plus 9 percent ad valorem.

A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director