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HQ 955813





April 26, 1994

CLA-2 CO:R:C:T 955813 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 3915.90.0000

District Director
U.S. Customs Service
10 Causeway Street
Room 603
Boston, Massachusetts 02222-1059

RE: Application for further review of Protest No. 0401-93-100603 under 19 U.S.C., section 1514(c)(2); classification of perfluoroalkoxy (PFA) resin scrap-lathe turnings.

Dear Sir:

This is a decision on application for further review of a protest timely filed by C.H. Powell Company on behalf of Civiera and Silver International, Incorporated against your notice of action, dated September 10, 1993. We have considered the protest and our decision follows.

FACTS:

The subject merchandise consists of lathe turnings of perfluoroalkoxy (PFA) resin. As a result, they are twisted spiral or helical in shape. The protestant states that the lathe turnings are sold to reprocessors who sort, granulate and turn them into pellets to be used in the manufacture of wire coatings.

The PFA lathe turnings were entered under subheading 3915.90.000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for waste, parings and scrap, of other plastics. They were classified in subheading 5404.90.0000, HTSUSA, which provides in pertinent part for strip and the like of synthetic textile materials of an apparent width not exceeding 5 mm.

ISSUE:

What is the tariff classification for the PFA lathe turnings?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

The PFA lathe turnings were classified in subheading 5404.90.0000, HTSUSA, as strip and the like of synthetic textile materials of an apparent width not exceeding 5 mm. The Explanatory Note to heading 5404 states in part that the heading covers:

Strip and the like, of synthetic textile materials. The strips of this heading are flat, of a width not exceeding 5 mm, either produced as such by extrusion or cut from wider strips or from sheets.

Provided their apparent width (i.e., in the folded, flattened, compressed or twisted state) does not exceed 5 mm, this heading also covers:

(i) Strip folded along the length.

(ii) Flattened tubes, whether or not folded along the length.

(iii) Strip, and articles referred to in (i) and (ii) above, compressed or twisted.

If the width (or apparent width) is not uniform, classification is to be decided by reference to the average width.

This heading also includes multiple (folded) or cabled strip and the like.

All these products are generally in long lengths, but remain classified here even if cut into short lengths and whether or not put up for retail sale.

The Explanatory Note provides that strips of heading 5404, HTSUSA, are flat. The PFA turnings are flat in the sense that they are thin slices that have been pared from a solid plastic material. However, they possess random twisting, spherical and helical shapes. We conclude that parings in this form are not "flat" as that term is used in the Explanatory Note. Therefore, the lathe turnings are not classifiable as strip of heading 5404, HTSUSA.

Heading 3915, HTSUSA, provides for waste, parings and scrap, of plastics. In Headquarters Ruling Letter (HRL) 952836, dated February 19, 1993, Customs ruled that PTFE scrap shavings were classifiable in heading 3915, HTSUSA. In HRL 951875, dated September 12, 1992, Customs ruled that articles of PTFE that had not been transformed into primary form(s) were classifiable in heading 3915. The instant lathe turnings appear to be manufacturing waste and meet the description of trimmings or shavings that have not been transformed into primary forms. Consequently, they are properly classified in heading 3915, HTSUSA.

HOLDING:

Therefore, based on the foregoing discussion, this protest should be granted in full. The subject merchandise is classifiable in subheading 3915.90.0000, HTSUSA, which provides for waste, parings and scrap, of plastics. The applicable rate of duty is Free. A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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