CLA-2 CO:R:C:G 084775 HP
Mr. Sherman Smith
Hudson Valley Tree, Inc.
840 Broadway
Newburgh, NY 12550
RE: Rigid versus flexible PVC sheeting depends upon whether the
modulus of elasticity in tension, as laid out in the ASTM
designations, is greater than 100,000 psi.
Dear Mr. Smith:
This is in reply to your letter of June 6, 1989, requesting
reconsideration of NYRL 840657 of May 30, 1989.
FACTS:
The merchandise at issue consists of polyvinyl chloride
("PVC") sheets, imported from Taiwan on rolls, in widths of 2,3
and 4 inches, and lengths of approximately 2400 feet. The sheets
will be imported in thicknesses of 3 mil and 6 mil. In all
cases, the modulus of elasticity exceeds 240,000 pounds per
square inch.
In NYRL 840657, we classified this merchandise under subhead
ing 3920.41.0000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as rigid sheets of plastics. You
claim that classification as flexible sheets of plastics would be
more appropriate.
ISSUE:
Whether the merchandise is considered rigid or flexible
sheets of plastics?
LAW AND ANALYSIS:
Heading 3920, HTSUSA, provides for, inter alia, sheets of
plastics, rigid or flexible. The General Rules of Interpretation
(GRI's) to the HTSUSA govern the classification of goods in the
tariff schedule. GRI 1 states, in pertinent part:
... classification shall be determined according to the
terms of the headings and any relative section or chapter
notes ....
Goods which cannot be classified in accordance with GRI 1 are to
be classified in accordance with subsequent GRI's, taken in
order.
The legal notes to the HTSUSA fail to instruct us as to the
differences between rigid and flexible plastic sheeting. In
looking elsewhere, we recognize that the Explanatory Notes to the
HTSUSA constitute the official interpretation of the tariff at
the international level. The Explanatory Notes, however, do not
aid us, as they also fail to explain the differences between
rigid and flexible sheets of plastics.
In Sekisui Products, Inc. v. United States, 63 Cust. Ct. 123
,
C.D. 3885 (1st Div. 1960), corrugated PVC panels were considered
flexible sheets of plastics. In defining the term "flexible" for
classification purposes under Item 771.42 of the Tariff Schedule
of the United States (TSUS), the Court held that common meaning
of flexible is the definition stated in Webster's Third New
International Dictionary of the English Language, Unabridged
(1961), as:
1: capable of being flexed: capable of being
turned, bowed, or twisted without breaking. * * *
Syn. Elastic, resilient, springy, supple:
Flexible is applicable to anything capable of being
bent, turned, or twisted without being broken and
with or without returning of itself to its former
shape.
Consequently, where individual subheadings exist for both
"flexible" sheeting and "other" sheeting, we have followed
Webster's definition of flexible in classifying sheets of
plastics. See T.D. 56041 (99) of October 4, 1963 (classifying
three-layer vinyl sheeting, being pliable and capable of being
rolled up into small sizes, as flexible). Compare HTSUSA
subheading 3920.63.1000 (flexible unsaturated polyester sheeting)
with HTSUSA subheading 3920.63.2000 (other unsaturated polyester
sheeting), and HTSUSA subheading 3920.99.1000 (flexible other
plastic sheeting) with HTSUSA subheading 3920.99.5000 (other
other plastic sheeting). We acknowledge that the instant
merchandise meets the Sekisui test for "flexibility." Importa
tion of the PVC sheets on rolls is sufficient evidence thereof.
In ratifying the TSUS subsequent to Sekisui, Congress chose
not to recast the "flexible" versus "other" demarcation, even
though specifically made aware of the Sekisui decision and its
ramifications by means of a July 13, 1977 letter from the Acting
Commissioner of Customs. See Rohm and Haas Co. v. United States,
727 F.2d 1095 (Fed. Cir. 1984) (Friedman, J.) (recognizing
Congress' legislative ratification of Sekisui's "flexible" versus
"other" judicial construction). See also United States v. Astra
Trading Corp., 44 C.C.P.A. 8 (Customs 1956) (noting courts give
controlling effect to fact that legislature presumed to have
approved of judicial construction of tariff provision when
provision reenacted in same or substantially similar language);
United States v. Loffredo Bros., 46 C.C.P.A. 63 (Customs 1958)
(Astra Trading presumption especially true where legislature had
both actual and constructive knowledge of judicial construction).
In approving the Sekisui "flexible" versus "other" distinc
tion for plastic sheets, Judge Friedman placed great weight upon
Congress' reenactment of the applicable TSUS provisions without
substantive change, even after receiving actual notice of the ad
ministrative difficulties the distinction caused. In considering
applicable subheadings of the HTSUSA, a tariff schedule enacted
after the Rohm & Haas decision, PVC sheeting is classified, not
as either "flexible" or "other," but as either "rigid" or
"flexible." Compare subheading 3920.41.0000 with subheading
3920.42, HTSUSA. It is our opinion, therefore, that where the
HTSUSA breakouts require a differentiation for plastic sheeting
other than between "flexible" and "other," the Sekisui test is
not applicable.
Neither the legal notes nor the Explanatory Notes to the
HTSUSA currently define rigid plastic sheeting. In your letter
of June 6, 1989, you claim that "the dictionary defines rigid as
`lacking flexibility: stiff'[,] while it defines flexible as
`capable of being flexed: pliant, pliable'. * * * The material
we import can easily be wrapped around a small diameter mandrel
[an axle for securing material being machined] and just as easily
unwrapped and laid flat." From this, we infer that you believe
this dictionary definition is controlling.
It is . . . a well-established principle in
Customs jurisprudence that Tariff terms are to be
construed in accordance with their common and
commercial meanings, which are presumed to be the
same. United States v. C.J. Tower & Sons, 48 CCPA
87, C.A.D. 770 (1961). Congress is presumed to
know the language of commerce, and to have framed
tariff acts so as to classify commodities according
to the general usage and denomination of trade.
Nylos Trading Co. v. United States, 37 CCPA 71,
C.A.D. 422 (1942). * * * Ozen Sound Devices v.
United States, . . . 620 F.2d 880 ([C.C.P.A.]
1980)....
* * *
In view of the foregoing, [it must be demonstr
ated] that there is a legislative intent contrary
to the presumption of interpretation under common
meaning or prove that there exists a definite,
uniform and general commercial designation result
ing from established usage in commerce and trade,
Maddock v. Magone, 152 U.S. 368 (1894), that is not
contrary to a manifest legislative intent.
Rohm and Haas Co. v. United States, 568 F. Supp. 751 (Ct. Int'l
Trade 1983).
As we stated above, no manifest legislative intent toward
utilizing any single definition of rigid is apparent from the
legal notes to the HTSUSA. Nor has any been unearthed by way of
litigation. We must therefore explore whether there exists a
generally accepted commercial usage of rigid plastic sheeting.
In order to establish a commercial designation of a tariff
term, it must be demonstrated that such tariff term has a meaning
which is general (extending over the entire country), definite
(certain of understanding), and uniform (the same throughout the
country). S.G.B. Steel Scaffolding & Shoring Co. v. United
States, 82 Cust. Ct. 197 (1979).
In Rohm and Haas Co. v. United States, 568 F. Supp. 751 (Ct.
Int'l Trade 1983), the appellant's expert witness, Frank W.
Reinhart, whom the Court described as "possess[ing] excellent
qualifications indicating a life-long career devoted to research
ing and evaluating plastic materials," had been the chairman of a
subgroup at the American Society for Testing and Materials
(ASTM), an organization Mr. Reinhart called "the largest and
probably the most influential standardization body in the whole
world." He stated that this group had difficulty developing a
definition for the term flexible, "although the group perceived
no problem defining terms such as "rigid", "semirigid" and non-
rigid"." Id.
Generally, he stated, that flexibility refers
to three parameters: modulus of elasticity,
dimension (emphasis on thickness), and intended
use.... In general, this witness' opinion was of
the fact that a plastic sheet with a modulus of
elasticity of 100,000 psi and above is considered a
rigid plastic sheet.
* * *
[He] stated that he had read the entire transcript
of the Sekisui case, supra, and that he disagrees
with the Sekisui witness that the meaning of the
term "flexible" is synonomous with the common
dictionary definition thereof.
* * *
Plaintiff's subsequent witness [(an expert on
rigid PVC film and sheets)] ... testified that the
commercial meaning of the word "rigid" in the
plastics industry is "unplasticized", meaning that
the rigid material contains little or no plas
ticizer [(substance incorporated into a material to
increase its flexibility, workability or disten
sibility)]. [Id.]
In its strictest interpretation, PVC film is considered
rigid
when it does not contain any plasticizers. In practice, however,
approximately two to three percent of plasticizer is often added
to make the compound easier to process. In conversations with
our New York office, various manufacturers of plastics products
have stated that PVC sheeting with little or no plasticizer is
considered to be rigid, PVC sheeting with approximately 10
percent plasticizer would be semirigid, and PVC sheeting with 20
percent or more plasticizer would be considered flexible.
We therefore have two options for determining when PVC film
is rigid and when it is flexible. The first is based upon the
presence of plasticizers in the sheeting. Although we are able
to test for the presence of plasticizers, there is no industry-
wide accepted cut-off point for rigid versus non-rigid film. We
note the above discussion, where "approximately 10 percent" and
up may be considered either semirigid or flexible. In a techni
cal dissertation by the PVC Film Division of Hoechst Celanese
Corp., establishing the rationale for separation of PVC film and
sheets into rigid and flexible components, Mr. J.B. Blum states
that due to the impracticality of screening for the tremendous
variety of plasticizers constantly being introduced, and due the
differing effects the variety of plasticizers has upon the
physical properties of PVC film and sheets, "the most straight
forward means of establishing if a film is rigid is to measure
its modulus of elasticity utilizing the appropriate test method
for the film or sheet thickness."
Therefore, the second method for determining rigid versus
flexible PVC sheeting is through the use of the film's or
sheeting's modulus of elasticity. Not only is this consistent
with recognized ASTM standards (ASTM Designation D883-83a,
stating that rigid plastic, for purposes of classification, has a
modulus of elasticity greater than 100,000 psi at 23[C and 50%
relative humidity), but it also conforms to previous Customs
decisions. See Treas. Dec. 71-120(6) of April 23, 1971, defining
rigid plastic sheets as meeting ASTM Designation D883-69 for
"rigid plastic," having a modulus of elasticity in tension
greater than 100,000 psi. This method would also satisfy the
requirements of S.G.B. Steel, supra, in that it has meaning
extending throughout the entire country, is certain of under
standing, and is the same throughout the country.
HOLDING:
As a result of the foregoing, it is the opinion of the
Customs Service that in distinguishing between rigid and flexible
film and sheets of polyvinyl chloride, merchandise that satisfies
ASTM Designation D883-83a, having a modulus of elasticity, either
in flexure or in tension, greater than 700 MPa (100,000 psi) at
23[C and 50% relative humidity, is considered rigid film or
sheets for classification purposes under the HTSUSA. Therefore,
the instant merchandise is classified under subheading
3920.41.0000, HTSUSA, as other plates, sheets, film, foil and
strip, of plastics, noncellular and not reinforced, laminated,
supported or similarly combined with other materials, of polymers
of vinyl chloride, rigid. The applicable rate of duty is 5.8
percent ad valorem.
Pursuant to section 177.9, Customs Regulations (19 C.F.R.
177.9), the ruling letter of May 30, 1989 is modified in
conformity with the foregoing.
Sincerely,
John Durant, Director
Commercial Rulings Division