HQ 089387

August 30, 1991

CLA-2 CO:R:C:G 089387 KWM

CATEGORY: Classification

TARIFF NO.: 5503.20.0000

Mr. Jeffrey H. Pfeffer

Fritz Companies, Inc.

40 Exchange Place, 12th Floor

New York, New York 10005

RE: Reconsideration of New York Ruling Letter 849353; Stein

Fibers; polyester fiber; waste; stuffing; spinnable

fiber; staple fiber.

Dear Mr. Pfeffer:

We have received your request for reconsideration of New

York Ruling Letter (NYRL) 849353, regarding the classification

of \"polyester staple fibers.\" After considering your

submission and other items presented, we find that NYRL 849353

is correct, and we decline to revoke or modify it.

FACTS:

The merchandise at issue is described variously as

\"polyester fiber\" or \"polyester staple fiber\" or \"polyester

fiber waste.\" The precise method of manufacture is unclear,

but it would appear that \"regenerated materials\" (polyester

bottle scrap and x-ray film) are processed to create polyester

fibers, which are then imported. It is our understanding that

the samples which accompanied your request were provided to

the New York Seaport at a meeting held with Customs

representatives from the area. The samples have been tested

by the New York Customs Laboratories and were described as

follows:

The samples are composed of crimped, cut staple polyester

fibers generally of uniform length.

The samples are not carded, combed or otherwise processed

for spinning.

The samples are capable of being spun with further

processing.

In addition to your request letter, you have provided several

items of correspondence with Stein\'s suppliers regarding the

condition of the merchandise upon arrival. Two reports issued

by independent laboratories regarding the condition of the

fibers are also included.

In a series of entries, dating from October 6, 1989

through March 20, 1990, Stein Fibers entered through the port

of Savannah several shipments of fiber which were classified

in heading 5903, HTSUSA. Fritz Companies, on behalf of Stein,

protested the classification (Protest number 1512-90000066,

dated August 29, 1990). These entries span the date of the

original New York ruling, dated February 28, 1990. Subsequent

to the last protested entry, the request for reconsideration

was filed (dated April 29, 1991). Disposition of the protest,

we understand, has been held pending the resolution of this

reconsideration request.

ISSUE:

Is the merchandise classified as synthetic staple fibers,

not carded, combed or otherwise processed for spinning, or is

it classified as waste of man-made fibers?

LAW AND ANALYSIS:

Request for reconsideration and the pending protest

Because Fritz Companies, on behalf of Stein Fibers, has

pending with the port of Savannah a protest action, this

request for reconsideration should be returned to the inquirer

without a response, or in the alternative should be made

applicable to prospective transactions only. The Customs

regulations provide generally that transactions for which

entry has been made and for which liquidation has occurred,

shall not be subject to the rulings program. Such cases

should be pursued to their conclusion through the protest

procedure. Therefore, Customs may refuse to reconsider the

New York ruling as you requested.

We note however, that an identical issue would be

presented under an application for further review of a protest

decision, and we have therefore determined that a response to

your reconsideration will be issued. However, should your

protest be decided adversely to your interests, it will not be

subject to the further review procedure. The following ruling

will resolve any open issues with regard to the entries at

issue in the pending protest. In the future, requests such as

this for merchandise already subject to protested entries will

be summarily denied and returned.

Classification

Classification under the Harmonized Tariff Schedule of

the United States Annotated (HTSUSA) is made in accordance

with the General Rules of Interpretation (GRI\'s). The

systematic detail of the harmonized system is such that

virtually all goods are classified by application of GRI 1,

that is, according to the terms of the headings of the tariff

schedule and any relevant Section or Chapter Notes.

Your request for reconsideration, as well as your

original ruling request, asserts that the proper

classification for the subject merchandise is as \"waste\" of

heading 5505, HTSUSA. In your April 29, 1991, letter you

premise that assertion on the condition of the merchandise as

having \"large variances in denier, shade and staple lengths.

The fibers are crimped and they contain snarls, broken

filaments and, in many instances, must be dried and cleaned

after importation . . ..\" You argue that the fibers are not

suitable for stuffing and that they fall within the scope of

\"waste\" as that term appears in heading 5505, HTSUSA.

Under the HTSUSA, Customs has classified as \"waste\"

products which are the by-product of a manufacturing process,

generally not suitable for the ordinary and original purposes

of manufacture. Waste is a refuse product, and not a

manufactured good in and of itself. In this case, all of the

evidence you have provided indicates that the fibers are the

specific (and intended) result of a deliberate manufacturing

process. It is not a by-product of manufacture or the result

of a mistake of manufacture. Whether or not it is suitable

for its\' intended use may affect classification in alternative

headings, but simple unsuitability for use as stuffing,

without further processing, does not automatically make the

fibers waste material classifiable in heading 5504, HTSUSA.

Lastly, the fact that the fiber may be manufactured from waste

does not in any way make the manufactured fibers themselves

waste. In this case, the quality of the raw material is

irrelevant. We find that these fibers are not waste.

Having found that the fibers are not considered \"waste\"

as that term is defined under the HTSUSA, Customs classified

your merchandise under heading 5503, HTSUSA, as synthetic

staple fibers not carded, combed or otherwise processed for

spinning. While your letter focuses on the inclusion of this

merchandise under the \"waste\" heading, it is implied that

heading 5503, HTSUSA, does not include the fibers. In part,

you argue that the Explanatory Notes substantiate your claims.

We do not agree.

The products classified in heading 5503 are synthetic

staple fibers which have not been processed for spinning. The

Explanatory Notes constitute the official interpretation of

the nomenclature at the international level. And, while they

are not legally binding on the Customs Service, we do consult

the Explanatory Notes in most instances to assist in

discerning the intended scope of the headings. Therefore, we

have considered your assertions that the Explanatory Note

references to \"waste . . . \[as\] relatively long or short

fibers, broken, knotted or tangled, etc.\" and \"staple fibers

\'are generally of uniform length, which distinguishes them

from waste material of heading 55.05.\'\" support your position.

Standing alone, those excerpts may appear to weigh against

Customs\' classification. However, we note that the General

Explanatory Notes to chapter 55, HTSUSA, include the

following:

The Chapter covers the man-made fibers

described in the General Explanatory Note to chapter

54 when in the form of staple fibers (i.e.,

discontinuous fibers) or of certain filament tow; it

also covers the products arising at various stages

of working these fibers or tow . . .

(Emphasis added), as well as the Explanatory Notes to heading

5505, HTSUSA, which provide for the inclusion of:

\(1\) Fiber wastes (soft wastes), such as

relatively long fibers obtained as waste

during the formation and processing

filaments; short fibers obtained as waste

from the carding, combing and other

processes preparatory to the spinning of

stale fibers (e.g., noils, small broken

pieces of laps, slivers or rovings).

\(2\) Yarn wastes (hard waste), i.e., broken,

knotted or tangled yarns collected as

waste during the spinning, doubling,

reeling, weaving, knitting operations.

(Emphasis original). The notes clearly anticipate that man-

made staple fibers, not fully processed for spinning, may be

classified in chapter 55, HTSUSA. However, the notes also

make clear that merchandise such as the instant fibers are not

waste. All of the characteristics described, such as \"broken,

knotted or tangled\" are the unintended result of spinning,

weaving or similar operations. Further, the \"relatively long

. . . or short\" fibers are \"obtained as waste\" during fiber

processing. Such descriptions as you cite cannot be read in

isolation; they are relevant only in relation to the full text

of the notes.

With regard to the question of \"uniform length\", Customs

Laboratories have examined samples of the fibers on two

separate occasions. First, samples drawn form the shipments

entered at the port of Savannah were found to be of uniform

length. Later, following a meeting with Customs officials in

New York, Stein Fibers provided additional samples for

testing. These too were found to be generally of uniform

length. Thus, in two separate and unrelated examinations

(including tests performed on samples of the importer\'s

choosing), Customs has found the fibers to be of uniform

length.

Your letter argues at length that the merchandise is

unsuitable for use without further processing. You have

indicated that the fiber will be used for stuffing. Heading

5503, HTSUSA, classifies both fiber intended to be spun and

fiber for stuffing. Fiber may well be suitable for stuffing

but not for spinning (i.e, lower grade fiber). This material

was manufactured for use as stuffing; It is the intended

result of such manufacturing and it is clearly within the

scope of heading 5503, HTSUSA.

HOLDING:

New York Ruling Letter 849353 is affirmed. The polyester

staple fiber, found by Customs Laboratories to be of generally

uniform length, and not combed, carded or otherwise processed,

is classified in subheading 5503.20.0000, HTSUSA. The

applicable duty rate is 4.9 percent ad valorem.

Sincerely,

John A. Durant, Director

Commercial Rulings Division

cc: Savannah District Director