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HQ 089063

November 8, 1991

CLA-2 CO:R:C:F 089063 EAB


TARIFF NO.: 3920.69.0000

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- 100039, dated January 24, 1991, concerning cronar plastic film sheets; polyesters; polyester blends; primary form; waste; Patton; Latimer; Federated Metals; T.D. 49493

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, November 23, 1990 and November 30, 1990.


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 [not ethylene, styrene or vinyl chloride], free of duty. The goods were im- ported on various dates upon break-bulk pallets. Following visual examination, Customs reclassified all goods under subheading 3920.63.1000, HTSUSA, as other film of plastic of polyesters, of unsaturated polyesters, flexible; the rate of duty was advanced to 4.2 percent ad valorem.

Protestant seeks reclassification of the goods to subheading 3915.90.0000, HTSUSA, providing as stated above. Protestant offers no sample, representative photograph or laboratory analysis of the goods in dispute. Per counsel, protestant admits that the merchandise is, in fact, a thermoplastic film consisting of polyethylene terephthalate (PET) and polyvinylidene chloride (PVDC), and offers that, as imported, it "[was] defective, * * * [;therefore,] not usable for its intended use * * * as a plastic for remanufacture."


What is the proper classification under the HTSUSA of a polyester blend in the form of film or sheets to be used as a material for remanufacture?


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 4, chapter 39, provides, inter alia:

For the purposes of this chapter, except where the context otherwise requires, copolymers * * * and polymer blends are to be classified in the heading covering polymers of that comonomer which predominates by weight over every other single comonomer * * * . If no single comonomer predominates, copolymers or polymer blends, as the case may be, are to be classified in the heading which occurs last in numerical order among those which equally merit consideration.

We find that the subject goods are a polyester film, more specifically, a thermoplastic blend of PET and PVDC. The goods are properly classifiable under heading 3915, HTSUSA, only if they are manufacturing waste or if they are clearly unusable for their original purpose. Since counsel for the protestant admits that the goods are "not usable for [the] intended use * * * as a plastic for remanufacture", the goods fail that part of the test requiring that they be unusable for their original purpose.

Concerning the common meaning of "waste", we do not find counsel's citation to Webster's New Collegiate Dictionary persuasive, since that term has been well defined as a matter of Customs law for nearly 100 years. In Patton v. U.S., 159 U.S. 500 (1895), the Supreme Court reviewed, ultimately, Customs classification of woolen goods alleged to be "waste." The Court stated that the term "does not presuppose that the article is absolutely worthless, but that it is unmerchantable and used for purposes for which merchantable material of the same class is unsuitable." Id., 503. "If the ordinary definition of 'waste,' as refuse matter thrown off in the process of manufacture, is to control, it is quite clear that the importations in question are not susceptible of this meaning." Id., 505. In other words, "waste" is a byproduct of the manufacturing process. For Customs purposes, something intentionally manufactured and not the byproduct of a manufacturing process is not "genuine waste" as the term is commonly defined and understood, but "artificial waste" to which no duty benefit will appertain. Id.

Clearly, in this case, the polyester film sheets are not the byproduct of a manufacturing process, i.e. "manufacturing waste" as the phrase is interpreted in Explanatory Note 39.15, but the product itself. That they may or may not have been once used for the purposes for which they were manufactured has not been a fact advanced or argued by counsel in this protest; no evidence having been presented on this matter, we are at liberty to presume that the subject goods may be virgin, manufactured for purposes other than as material to be used in a remanufacturing process, having their original quality and utility. As such, they are not waste. Latimer v. U.S., 223 U.S. 501, 504 (1912).

Finally, we believe that counsel's argument, that the goods must be waste because they are not useful in their condition as imported for remanufacturing, is misplaced. We are guided by the Customs Court decision in Federated Metals Corporation v. U.S., T.D. 49493 (1938). Aluminum alloy borings were in fact an unintentional byproduct in the manufacture of aluminum alloy castings and forgings. The borings could not be reintroduced into the manufacturing process in their condition as imported. The only use of the borings was for the purpose of remelting them for recovery of the metals (aluminum and copper) contained therein to make more alloy for castings and forgings. The residue from the remelting process had no commercial value and was discarded as useless. The court found that the borings were properly classifiable as aluminum alloy articles eo nomine and not aluminum scrap, citing, among other cases, Patton, supra, and Latimer, supra, on the meaning of "waste." Substituting the facts of this protest for the facts in Federated Metals, supra, and doing so most favorably to the protestant, we would have polyester film blend of PET and PVDC that cannot be reintroduced into the manufacturing process in its imported form. The only use to which the protestant puts the material is to recover the PET for reuse in making more polyester film, the PVDC being residue from the recovery process that is discarded as useless. Juxtaposed to this protest, we believe that Federated Metals teaches us that the subject goods are not "waste" for purposes of classification under heading 3915, HTSUSA. In any event, that the thermoplastic film is "not usable for its intended use [in this importation] * * * as a plastic for remanufacture" disqualifies it from classification under heading 3915, HTSUSA.

Since the goods are neither self-adhering nor cellular, they are not described under either heading 3919 or 3921, HTSUSA. Had evidence shown that PET predominated by weight, consistent with note 4 to the chapter, we would classify the subject goods under subheading 3920.62.0000, HTSUSA.

For all of the foregoing reasons, we are of the opinion that polyethylene terephthalate-polyvinylidene chloride film is properly classifiable under subheading 3920.69.0000, HTSUSA.


The protest should be denied.

Polyethylene terephthalate-polyvinylidene chloride film is properly classifiable under subheading 3920.69.0000, HTSUSA, other sheets, film of plastics; of other polyesters; of other polyesters. Articles classified under this subheading for the year 1990 were subject to a general rate of duty of 4.2 percent ad valorem.

Since the rate of duty for the independently arrived at classification is the same as the rate for the liquidated classification, you are instructed to deny the protest in full.

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.


John Durant, Director

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