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HQ 089062

December 9, 1991

CLA-2 CO:R:C:F 089062 ALS


TARIFF NO.: 3920.42.1000 3920.42.5000

Mr. Robert L. Follick
Attorney at Law
225 Broadway, Suite 500
New York, New York 10007

RE: Request for reconsideration of Headquarters Ruling Letter (HRL) 085103, dated October 3, 1989, Concerning Polyvinyl Chloride Sheeting Produced in Taiwan

Dear Mr. Follick:

This is in regard to your letter dated March 29, 1991, requesting reconsideration of the referenced Headquarters Ruling Letter.


In HRL 085103, we held that polyvinyl chloride sheeting made in imitation of patent leather, had to meet the requirements established in ORR Ruling 870-70, i.e., the vinyl had to be essentially opaque and possess a high gloss mirrorlike finish. It is stated therein that such vinyl is not transparent or translucent. Based thereon, we held that certain sheets of polyvinyl chloride, labelled Group A, were classifiable under subheading 3920.42.1000, Harmonized Tariff Schedule of the United States (HTSUSA), as polyvinyl chloride, flexible, made in imitation of patent leather. The remaining sheets of polyvinyl chloride, labelled Groups B through E, were found to not meet the above requirements and were found to be classifiable under subheading 3920.42.5000, HTSUSA, as other plates, sheets,...of plastics, noncellular and not reinforced...:, other. HRL 085103
specified the method utilized to make the determination whether the samples in the above 5 groups of PVC sheeting met the requirements of ORR Ruling 870-70. While the holding in HRL 085103 was not premised on the color of any particular PVC sheet, it was found that only PVC sheets of certain colors met the above requirements.

In the request for reconsideration counsel stated "that the rulings are predicated on an erroneous and an incorrect interpretation of the tariff,..., and countenance an administratively impossible task of requiring two different classifications for merchandise which is absolutely identical in every respect save color." You expressed disagreement with the criteria contained in ORR Ruling 870-70. You submitted arguments that these criteria were not interpreted correctly by Customs. You concluded that your client's polyvinyl chloride is manufactured the same way regardless of color and that there should not be a difference in classification based on color.


Does the PVC sheeting which was the subject of HRL 085103 imitate patent leather?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods, and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order.

We considered counsel's arguments regarding the interpretation of the guidelines utilized to determine whether a plastic imitates patent leather. The arguments raise questions as to the administrative burden of confirming whether PVC meets the criteria in ORR Ruling 870-70. In other words, counsel argues that administrative difficulty, which may arise in determining whether the PVC has a high gloss, is opaque in character and whether it has a mirrorlike finish, is an unacceptable administrative burden.

In considering these arguments we note that there is no controversy between the parties as to the interpretation of the term "high gloss". We also note that while counsel questions the use of the term mirrorlike finish, we find no disagreement with the fact that the greater opacity of the sheet, the more likely it is to reflect a good mirror-image. In regard to the term opaque, counsel believes that we should use dictionary definitions. We agree. In this regard, we note that Webster's Third New international Dictionary, 1981, defines opaque as "neither reflecting or emitting light; not transparent or translucent." The procedures utilized by Customs to ascertain whether the plastic sheeting was opaque and to verify that it was not transparent or translucent were described in detail in HRL 085103.

While the reflection of an image is, as noted by counsel, dependent on lighting conditions, we believe that the procedures utilized by Customs recognize this fact. Obviously, the ability of the human eye to see a reflected image is dependent on lighting conditions. We believe the lighting conditions used to examine the subject articles, good office light, was most likely to allow the greatest number of PVC sheets to meet the criteria of being "mirrorlike". In other words, they would reflect a good image.

Counsel states that with the exception of color, each PVC sheet is manufactured in the same way. The process is delineated in exhibit B of counsel's reconsideration request. Acknowledging that this might be true, we note that the qualities of different colorants is the direct cause of different effects in the finished products. This is directly related to the issue of whether a dye or pigment is used to produce the color. Organic dyes are generally transparent or translucent. Inorganic pigments tend to be more opaque. The fact that color effects the opacity of PVC sheeting is confirmed in two publications. In an article entitled "Colorants," printed in the Modern Plastic Encyclopedia, 1991 (McGraw Hill), Steven Gordon, the Director of Technology, Reed Plastics, Division of Sandoz Chemical, discusses the effects of various pigments and dyes. He states, "Organic colorants tend to be brighter, stronger, and more transparent than inorganics, which are duller and more opaque because of their metallic compound base." In the Kirk-Othmer Encyclopedia of Chemical Technology, Vol. 15, it is noted that a pigment "imparts color by the selective absorption of visible light, and affects the opacity of the medium in which it is incorporated."

Sheets which are less opaque do not reflect a mirrorlike image, and sheets which are not opaque do not meet one of the criteria for imitating patent leather, so the effects of different colorants can be directly related to the classification of the finished product.

Although, as counsel states, the PVC is "essentially opaque in that one cannot see through the articles when used and placed for their intended purpose", we find this is not pertinent to the classification of the PVC since such classification is based on the condition of the PVC as imported and not in its condition when subsequently incorporated into a product.

While the fact that colorants effect the opacity of the PVC sheeting may produce a burden to Customs, there is little burden to the importer. It might be necessary for Customs to visually examine samples, but there is a similar burden as to other products.


PVC sheeting of certain colors, as specified in HRL 085103, imitates patent leather and is classifiable under subheading 3920.42.1000, HTSUSA, and is dutiable at a general rate of duty of 3.1 per cent ad valorem. PVC sheeting of other colors, as specified in the referenced ruling, which does not imitate patent leather, is classifiable under subheading 3920.42.5000, HTSUSA, and is dutiable at a general rate of duty of 4.2 per cent ad valorem.

HRL 085103 is found to be correct and is hereby affirmed.


John Durant, Director
Commercial Rulings Division

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