568 F.Supp. 751 (CIT. 1983), 80-9-01342, Rohm and Haas Co. v. United States

Docket Nº:Court No. 80-9-01342.
Citation:568 F.Supp. 751
Party Name:ROHM AND HAAS COMPANY, Plaintiff, v. The UNITED STATES, Defendant, Almac Plastics, Inc., Party-in-Interest.
Case Date:May 12, 1983
Court:Court of International Trade
 
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568 F.Supp. 751 (CIT. 1983)

ROHM AND HAAS COMPANY, Plaintiff,

v.

The UNITED STATES, Defendant,

Almac Plastics, Inc., Party-in-Interest.

Court No. 80-9-01342.

United States Court of International Trade.

May 12, 1983

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Baker & McKenzie, Washington, D.C. (William D. Outman, II, Washington, D.C., at trial and on brief), for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, International Trade Field Office, Commercial Litigation Branch, New York City (Madeline B. Kuflik, New York City, at trial and on brief), for defendant.

Almac Plastics, Inc. by Jerome Goldner, pro se.

LANDIS, Judge:

Plaintiff commences this action as an American manufacturer pursuant to 19

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U.S.C. § 1516 . The subject imported merchandise, sheets of acrylic resin (imported under the trademark "Plexiglas") was entered at the port of New York in May, 1980, by Almac Plastics, Inc., the party-in-interest to this lawsuit.

The imported merchandise was classified pursuant to TSUS item A771.41 as flexible plastic sheets and was granted duty free entry under the Generalized System of Preferences as products from Taiwan. Plaintiff claims that the imported merchandise is properly classifiable as "other sheets of acrylic resin" pursuant to TSUS item 771.45, at a duty rate of $.085 per pound.

The relevant statutes are as follows:

Tariff Schedules of the United States Schedule 7.-Specified Products; Part 12.-

Rubber and Plastics Products, Subpart B.-

Rubber and Plastics Waste and Scarp; Rubber and Plastics Film, Strips, Plates, Slabs, Blocks, Filaments, Rods, Tubing and other Profile Shapes.

Films, strips, sheets, plates, slabs, blocks, filaments, rods seamless tubing, and other profile shapes, all the fore-

going wholly or almost wholly of rubber or plastics. Not of cellulosic plastics materials:

Film, strip, and sheets, all the foregoing which are flexible:

Other:

Item A771.41. Of materials other than polyester, polyvinyl chloride, polyethylene, or polypropylene, over 0.006 inch in thickness, not in rolls 2....... 6% ad val.

x

x

x

Other Item A771.45 Of acrylic resin......... 8.5% per lb.

During the course of the trial, plaintiff called five witnesses and defendant called one witness. Additionally, the court granted a representative and officer of Almac Plastics, Inc. the opportunity to participate at the trial. 1 The court received and entered fifteen (15) exhibits submitted by plaintiff and one (1) joint exhibit submitted pursuant to agreement of the litigants.

Plaintiff filed a trial brief and defendant filed a responsive trial brief. Plaintiff, although entitled, did not file a reply brief to defendant's responsive brief.

Plaintiff's initial witness, Walter G. Lee, was at the time of trial and importation of the merchandise in issue, Product Manager for Sheet Products for plaintiff Rohm & Haas Company (RHC). His unrefuted testimony indicates that he has been employed by plaintiff for over thirty (30) years and that plaintiff (RHC) is the premier United States sales company in the acrylic sheet industry. Identifying Exhibit 11 (a price list for manufacturing and sales by RHC, effective August 3, 1981), Mr. Lee stated that RHC has never marketed acrylic sheet in any size, thickness or dimension listed in Exhibit 11 as flexible plastic sheet. (R. 30-31)

Further testimony by Mr. Lee indicates that plaintiff's Exhibit I is comparable to the imported merchandise at issue, and, that plaintiff has never marketed such acrylic sheets as "flexible plastic sheets", but has marketed the product in issue as "a rigid plastic sheet" (R. 29-30). Mr. Lee testified that acrylic sheet is a transparent, rigid material with a high resistance to breakage and weather and can be substituted for glass in replacement window glazing. Mr. Lee also testified that since 1963 he has never encountered an acrylic sheet that has been sold or offered for sale in the United States as "flexible plastic sheets".

Mr. Lee also stated that the "Plexiglas" material in issue is shipped pursuant to documents referring to it as a rigid material in order to comply with pertinent Interstate Commerce Commission regulations. The witness offered no testimony as to a standard industry or commercial meaning of the term "flexible".

Plaintiff's subsequent witness was Mr. Frank W. Reinhart. This witness testified that he is currently a consultant in plastics

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and that he had previously been employed for twenty five (25) years by the National Bureau of Standards (NBS). Mr. Reinhart possessed excellent qualifications indicating a life-long career devoted to researching and evaluating plastic materials. The record indicates that Mr. Reinhart has been a member of the American Society of Testing Materials (ASTM) since 1945 and has received an honorary membership in ASTM, the highest bestowal award granted by that organization.

Mr. Reinhart was, at ASTM, chairman of a group developing definitions of terms for standards applicable to the plastics industry. He specifically 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". The testimony definitively shows that members of Mr. Reinhart's committee continuously employed the term flexible during the discussion period but, that the committee could not agree upon a specific definition of the term "flexible" and thus, the committee never ratified a definition of the term "flexible".

The record further indicates that in his attempt to develop a definition for "flexible" he examined every dictionary definition of "flexible" available, but found none of such terms examined satisfactory because the term had a trifold meaning in the plastics industry. Generally, he stated, that flexibility refers to three parameters: modulus of elasticity, dimension (emphasis on thickness), and intended use (R. 57-58). 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.

Mr. Reinhart identified Plaintiff's Exhibit 1 as "rigid sheet and stated that he did not consider it "flexible" because its modulus of elasticity was too high. He also testified that a good test of "flexibility" is to fold a plastic sheet back on itself and crease it and, if it breaks, it is not "flexible".

Mr. Reinhart next identified Plaintiff's Exhibit 2 as a corrugated rigid building panel, similar according to the witness, with the subject merchandise in Sekisui Products, Inc. v. United States, 63 Cust.Ct. 123, C.D. 3885 (1969). He testified that this panel is not "flexible". Generally, the witness testified that if a plastic breaks, cracks or crazes when folded he does not consider it to be "flexible". Mr. Reinhart stated that he had read the entire transcript of the Sekisui case, supra, and that he disagrees with Sekisui witnesses' that the meaning of the term "flexible" is synonymous with the common dictionary definition thereof.

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