CLA-2 CO:R:C:G 085912 KWM
Mr. Sherman Smith
Hudson Valley Tree, Inc.
840 Broadway
Newburgh, NY 12550
RE: Reconsideration of HRL 084775, classification of
rigid PVC sheeting
Dear Mr. Smith:
We have received your letter of October 31, 1989, requesting
reconsideration of Headquarters Ruling Letter (hereinafter "HRL")
084775, a binding ruling classification of rigid polyvinyl
chloride sheeting. After careful review, we have determined
that HRL 84775 is correct for the reasons discussed below.
FACTS
In a letter dated May 3, 1989, your company requested a
binding classification ruling for polyvinyl chloride (hereinafter
"PVC") sheeting. That ruling was issued in New York Ruling
Letter (hereinafter "NYRL") 840657, dated May 30, 1989. NYRL
840657 classified the merchandise in question as rigid sheets of
PVC under subheading 3920.41.0000, of the Harmonized Tariff
Schedule of the United States (hereinafter "HTSUSA"), dutiable at
the rate of 5.8 percent ad valorem.
Hudson Valley, in a letter dated June 6, 1989, expressed the
opinion that NYRL 840657 was incorrect, and requested of the
Commissioner of Customs a reconsideration of the New York
Ruling. On October 12, 1989, this office issued HRL 084775,
addressing the reconsideration of the PVC sheeting
classification. In that ruling, the test for rigid PVC sheeting
was established. This office, on the basis of that test, upheld
NYRL 840657, and affirmed the classification of the subject
"rigid" PVC sheeting under subheading 3920.41.0000, HTSUSA.
In your most recent letter, you have requested that Customs
again reconsider our classification of PVC sheeting in NYRL
840657 and HRL 084775.
ISSUE
Is the classification of the PVC sheeting at issue in NYRL
840657 and HRL 084775 correct under the Harmonized Tariff
Schedule of the United States?
LAW AND ANALYSIS
The gravamen of your requests for reconsideration is that
Customs has failed to properly define and apply the terms "rigid"
and "flexible" as they are used in the HTSUSA. That assertion,
according to your October 31, 1989 letter, is based principally
on the judicial precedent of Sekisui Products, Inc. v. United
States, 63 Cust. Ct. 123, C.D. 3885 (1st Div. 1960). It is our
opinion, however, that (1) the Sekisui decision is inapplicable
to the issue in this case, and (2) assuming arguendo that Sekisui
is applicable, Congress intended that the common, commercial or
trade meaning be applied to the tariff term "rigid", rather than
the dictionary definition.
The Sekisui Products case
We consider the case of Sekisui Products, Inc. v. United
States, 63 Cust. Ct. 123, C.D. 3885 (1st Div. 1960) to be
inapplicable to the merchandise at issue here. Sekisui and its
progeny were decided under the auspices of the Tariff Schedule of
the United States (hereinafter "TSUS"), which has since been
superseded by the HTSUSA. While we consider case law such as
Sekisui to be persuasive, it is not binding on this office. In
enacting the HTSUSA, the United States Congress determined, by
specific statements of legislative intent, the status of cases
such as Sekisui:
In light of the significant number and nature of
changes in nomenclature from TSUS to the HTS, decisions
by the Customs Service and the courts interpreting
nomenclature under the TSUS are not to be deemed
dispositive in interpreting the HTS. House Conference
Report on Omnibus Trade and Competitiveness Act of
1988, H.R. Rep. No. 100-576, 100th Cong., 2nd Sess.,
reprinted in 1988 U. S. Code Cong. & Ad. News 1547,
1582.
Indeed, many similar issues are decided in distinctly different
ways under the HTSUSA, because the HTSUSA is an international
tariff schedule, and its heading and subheading breakouts require
different treatment of imported goods than has occurred in the
past. For that reason, in those cases (such as this one) where a
prior court decision deals with particular terms and goods under
the old tariff schedule, we decline an invitation to place
significant reliance on that decision.
Congressional Intent
Were we to consider the Sekisui case directly applicable in
this instance, despite the fact that it is a TSUS decision, we
cannot agree with your contention that the meaning of the term
"flexible", and by negative implication the meaning of "rigid",
is determined by the dictionary definition. While we agree that
Sekisui so holds, we note that the rationale of the court in that
case is not applicable in this instance.
As we understand your request, you believe that Congress, in
drafting the HTSUSA language, substituted the term "rigid" for
the TSUS term "other":
"PVC sheeting is either 'flexible' or 'rigid',
there being no differentiation to fall into the
category of 'other'." Hudson Valley letter of October
31, 1989, at 1.
Such an interpretation of the HTSUSA results in the simple
equation of the terms "other" and "rigid". As our ruling letter
of October 12, 1989, points out, we have found no language to
indicate that Congress intended this interpretation. Further,
Customs is not in a position, and would decline even if we were,
to speculate upon any correlation between those terms. To the
contrary, we are of the opinion that Congress intentionally used
the term "rigid" in the HTSUSA to conform the tariff language to
the common, commercial or trade meaning of the tariff terms.
The basis for our determination of the meaning of the tariff
terms in subheadings 3920.41 and 3920.42, HTSUSA, is set forth in
HRL 084775, and will not be repeated here in detail. Briefly, we
do not find, in this instance, any of the judicially determined
prerequisites for adopting the dictionary definition of a tariff
term. Rather, it is our opinion that Congress clearly intended
to define the scope of the goods included in 3920.41.000, HTSUSA,
by definite, uniform and commercial standards. That intent is
manifested in the adoption of "rigid" as a tariff term. The ASTM
standards, set out in ASTM Designation D883-83a, for classifying
goods based on their modulus of elasticity, provide a commercial
designation commonly accepted in commerce and trade for "rigid"
PVC sheeting. We are of the opinion that use of the ASTM
standards will properly fulfill Congressional intent. The ASTM
standards, therefore, take precedence over the Sekisui dictionary
definition. In addition, we are of the opinion that the use of
these standards provides clearly defined guidelines for
determining whether PVC sheeting is "flexible" or "rigid",
thereby preventing uncertainty among importers as to the proper
HTSUSA classification. It also provides a readily available
means by which items may be tested.
In summary, we are of the opinion that the Sekisui decision
relied on by you in your October 31, 1989, correspondence is
inapplicable to the present case. In addition, even if we were
to accept that precedent as applicable, its rationale is
distinguishable in light of the legislative intent regarding the
meaning of the tariff terms in question. That intent, we
believe, is manifest in the adoption of specific tariff terms and
the implied refusal of Congress to legislatively ratify the
Sekisui decision.
HOLDING
After considering your request for reconsideration of HRL
084775, we decline to modify or revoke our classification of PVC
sheeting having a modulus of elasticity greater than 100,000 psi
as other sheets of plastic, noncellular and not reinforced, of
polymers of vinyl chloride, rigid, under subheading 3920.41.0000,
HTSUSA.
Sincerely,
Harvey B. Fox
Director, Office of
Regulations and Rulings