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HQ 954159

September 13,1993

CLA-2 CO:R:C:F 954159 JGH


TARIFF NO.: 3902.10

Mr. Jan A. Van Hummel
P.O. Box 822546
Dallas, Texas 75382-2546

RE: Classification of Atactic Polypropylene - Reconsideration

Dear Mr. Van Hummel:

Your letter of May 12, 1993, requests a reconsideration of Headquarter's decision (HQ) 952523, dated October 26, 1992, which was a reconsideration of HQ 951972, dated August 17, 1992; both decisions dealt with the classification of atactic polypropylene in the Harmonized Tariff Schedules of the United States (HTSUS).


Atactic polypropylene (APP) is described as a by-product generated during the production of polypropylene. It is used as a material in the manufacture of roofing membranes, caulks, sealants and adhesives. Fully polymerized polypropylene is stereospecific and crystalline in structure, while APP is random in structure and amorphous.

In the first decision (951972), it was pointed out that polymers of polypropylene classifiable as primary forms in heading 3902 include all three recognized forms: isotactic, syndiotactic and atactic. It was further pointed out that Legal Note 6(b), Chapter 39, defines primary forms as including blocks of irregular shape, lumps, powders, flakes and similar bulk forms. Legal Note 7 states that heading 3915, Waste, does not include waste, parings and scrap of a single thermoplastic material which had been transformed into a primary form. Consequently, it was concluded that APP was a primary form of polypropylene classifiable in subheading 3902.10, HTSUS.

In HQ 952523, the first reconsideration of HQ 951792, the issue was whether APP as an undesirable by-product generated during the production of isotactic polypropylene resin was a waste. In the decision it was pointed out that, as APP was a - 2 -
thermoplastic resin in a primary form, Customs was bound by the legal notes definitions to the plastics chapter when classifying the material, and under the language of those notes, APP was a primary form of polypropylene and not a waste.


Classification of APP in the HTSUS.


In your latest submission you present arguments (along with extensive background material) to support your contention that APP is an undesirable, mostly unusable by-product, generated in the production of the commercial product, isotactic polypropylene, and not a plastic. However, even one of your sources, Olefins, Polymers, (Polypropylene), lists atactic as one form of the thermoplastic resin. Several opinions are given on the unsuitability of APP and a sample is enclosed which you describe as generated by Exxon and totally unsuitable for any use. You interpret the Legal Note 1, Chapter 39, definition of plastics as not including APP, an amorphous shape which you maintain can not be transformed into another shape or product; however, as pointed out the previous decisions, not only is APP a recognized form of polypropylene, but Legal Note 6 includes the amorphous form as one of the primary forms included in the term "plastics".

We agree with your statement that a "material in a primary form is not necessarily a primary product." However, in tariff classification, unless there is a limiting tariff description of the import, the material in all of its forms is classifiable under the eo nomine provision, which in this case includes both the desired form and the undesired by-product; thus, subheading 3902.10, HTSUS, includes all forms of polymers of polypropylene, whether desired products or not; a view supported by the Organic Chemistry definition you supplied :" In most cases, the stereoregular isotactic and syndiotactic polymers are stronger and stiffer because they form polymers with greater crystallinity...Free radical polymerization is nearly random, resulting in branched, atactic polymers." Thus, while atactic may be an undesired form, it is, nonetheless, a form of the resin.

In the alternative, you suggest that as APP is a wax-like material, it is similar to petroleum waxes in subheading 2712. However, Chapter 27, covers mineral fuel, oils, their distillation products and bituminous substances. The waxes of that heading are derived from petroleum oils, shale or bituminous minerals; a source which would not include APP. In fact, the Explanatory Notes to heading 2712 mention that the provision does not include high polymer waxes such as polyethylene wax. - 3 -

In order for polypropylene in primary form to be an artificial, synthetic or prepared wax of heading 3404, the Explanatory Notes to 3404 state that the waxes must have: a dropping point above 40 degrees C.; and a viscosity, when measured by rotational viscometry, not exceeding Pa.s (or 10,000 cP) at a temperature of 10 degrees C. above their dropping point. In addition the Explanatory Notes point out that the waxes must have the following properties:

(a) take a polish when gently rubbed;
(b) their consistency and solubility depend largely on temperature;
(c) at 20 degrees C.: (i) some are soft and kneadable (but not sticky or liquid) (soft waxes), others are brittle (hard waxes);
(d) at temperatures above 40 degrees C., they melt without decomposing;
(e) just above their melting point they cannot easily be drawn into threads:
(f) they are poor conductors of heat and electricity.

There is no indication in the file that atactic polypropylene in issue satisfies the above definition of waxes. If you can supply such evidence, we would consider the issue.


Atactic polypropylene is classifiable as a primary form of polypropylene in subheading 3902.10.00, HTSUS.

HQ 951972 and HQ 952523 are affirmed.


John Durant, Director

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