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HQ 084775


October 12, 1989

CLA-2 CO:R:C:G 084775 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3920.41.0000

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

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