HQ 089387: Reconsideration of New York Ruling Letter 849353; Stein Fibers; polyester fiber; waste; stuffing; spinnable fiber; staple fiber.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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