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HQ 088475

May 10, 1991

CLA-2 CO:R:C:F 088475 ALS


TARIFF NO.: 3904.10.00

Mr. Salvatore E. Caramagno
Attorney at Law
Ross and Hardies
888 16th Street, N.W.
Washington, D.C. 20006-4103

RE: Polyvinyl Chloride in Dust or Powder Form

Dear Mr. Caramagno:

This is in reference to your letter of January 9, 1991, requesting the tariff classification of an article described as polyvinyl chloride scrap. A sample was not provided.


The article under consideration is obtained when reactor walls are scraped off after a production for polyvinyl chloride. It is in a dust or powder form and, because of impurities, it cannot be used for its original purpose as polyvinyl chloride resin without further processing of the powder to remove the impurities.


Is the article under consideration polyvinyl chloride in primary form?


Classification or merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In reviewing the headings eligible for classification of the article, we noted, as suggested by counsel, competing headings in Chapter 39, HTSUSA. It appears that the article would be classifiable under subheading 3904.10.00, HTSUSA, if it were polyvinyl chloride (PVC) in primary form or, as suggested by counsel, subheading 3915.20.00, HTSUSA, as waste, paring and scrap, of polymers of vinyl chloride.

Counsel refers to the article alternatively as scrap, waste, and dust. These terms are defined in The American Heritage Dictionary, Second College Edition, as follows:

Scrap - Discarded waste material, esp. metal suitable for reprocessing.

Waste - A useless or worthless by-product.

Dust - Fine, dry particles of matter.

Counsel also refers to the article as "manufacturing waste" and indicates that it would be treated commercially as waste, but no confirmation thereof is provided. We note that such terminology, in any case, would appear to be in conflict with the dictionary definition of the term waste since, as stated by counsel, "the dust has value".

In considering counsel's arguments we considered Legal Notes 6 and 7 to Chapter 39, HTSUSA. Legal Note 7, as stated by counsel, excludes waste, parings and scrap of a single thermoplastic material transformed into primary forms. Legal Note 6, HTSUSA defines primary forms, as hereto pertinent, as "...(b) Blocks of irregular shape, lumps, powders (including moulding powders) granules, flakes and similar bulk forms."

The sole question thus appears to be whether the PVC under consideration is a primary form of polymers of vinyl chloride. Counsel states that the article is not fit for its intended purposes as primary form material, without further processing or remanufacture, because of contaminants or impurities therein, and
that it should not be considered as such. We, however, find no provision in the HTSUSA which establishes a requirement that PVC, whether being imported as a dust, powder, etc. must be suitable for direct use in the same type of manufacturing process initially utilized for first quality PVC. The PVC with impurities will ultimately be used for the same purposes as virgin PVC. The impurities are the only difference between the pure and contaminated PVC. It would seem that the PVC, which was in primary form when initially used, is now a powder, remains in primary form and has not been altered by the contaminants.

Also, as noted in Headquarters Ruling Letter (HRL) 087246 of October 30, 1990, regarding contaminated polyamide flakes, the presence of contaminants does not exclude the article from classification as a primary form. We, therefore, believe that the PVC, in accord with Legal Note 7, is excluded from classification under subheading 3915.30.10, HTSUSA, regardless of what label is attached to it. Pursuant to Legal Note 6, the article would be classifiable in Heading 3901 - 3914, HTSUSA. We do not believe that the arguments as to how the articles might have been classified under the Tariff Schedules of the United States Annotated (TSUSA), are pertinent to the classification under the HTSUSA.

While counsel has not specifically requested us to consider the applicability of the United States - Canada Free Trade Agreement (FTA), we note that if the article is an "originating good" imported from Canada or if it is a product of Canada, whether or not originating goods under the FTA, it might be eligible for a reduced rate of duty upon compliance with the requirements of General Note 3(c)(vii), HTSUSA.


The subject polyvinyl chloride is a primary form of the polymers of vinyl chloride and is classifiable under subheading 3904.10.00, HTSUSA, and dutiable at a general rate of duty of 10.1 per cent ad valorem.

If the article is goods originating in Canada or a product of Canada, in accordance with the FTA, it may be eligible for a reduced rate of duty, 4 per cent ad valorem, upon compliance by the importer with the provisions of the FTA and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).


John Durant, Director
Commercial Rulings Division

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