CLA-2 CO:R:C:F 952970 EAB
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202
Re: Application for further review of Protest No. 0901-92-101334,
dated August 12, 1992; polyethylene; waste; primary forms
This is a decision on a protest filed August 12, 1992, against
your decision in the classification of merchandise entered on
November 12, 1991 and liquidated on June 5, 1992.
The protestant entered the merchandise, consisting of chips
and flakes of polyethylene, under subheading 3915.10.0000,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
a provision for waste, parings and scrap of polymers of ethylene.
Customs reclassified the merchandise under subheading
3901.20.0000, HTSUSA, a provision for primary forms of polymers of
polyethylene having a specific gravity of 0.94 or more.
Visual examination of a sample submitted as part of this
protest indicates that the merchandise is, in fact, a high density
plastic polymer. As there is no dispute that the sample is a
polyethylene polymer, the only question at hand is whether the
merchandise meets the description of the goods in heading 3901 or
3915 of the tariff schedule.
What is the classification under the HTSUSA of high density
polyethylene polymer chips and flakes?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. Tariff classification 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 first
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.
Heading 3915 describes waste of plastics. Legal Note 7,
Chapter 39, states as follows:
Heading 3915 does not apply to waste, parings and scrap
of a single thermoplastic material, transformed into
primary forms (headings 3901 to 3914).
Thus, it is apparent that single thermoplastic materials in primary
form cannot constitute waste for classification in heading 3915.
As we clearly, but perhaps too succinctly, stated in HQ 089064
(November 4, 1991): "Very simply, a single thermoplastic in
primary form is not waste * * *." In other words, the Rosetta
Stone for heading 3915 is the phrase "transformed into." If a
plastic article has been transformed into a primary form, it is not
"waste" of heading 3915.
Certainly, soft-drink bottles made of polyethylene are not
plastic in primary form. Chopped-up into chips and flakes, the
bottles of high-density polyethylene have been transformed into a
plastic in primary form that is classifiable under heading 3901,
The protest should be denied.
High-density polyethylene chips and flakes made from articles
of the same material are a plastic that has been transformed into
a primary form classifiable under subheading 3901.20.0000, HTSUSA,
polymers of ethylene, in primary forms; polyethylene having a
specific gravity of 0.94 or more.
Merchandise entered in 1992 under the foregoing provision was
dutiable at the column one general rate of 12.5 percent ad valorem.
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.
John Durant, Director