Both CBP and CIBA's Motions for Judgment Fail in Polyvinyl Alcohol HTS Classification Case
In a dispute between Customs and the CIBA VISION Corp. over the correct Harmonized Tariff Schedule classification of a polymer solution used in the manufacture of daily disposable soft contact lenses, CIT denied motions for judgment by both CIBA and CBP because neither party had established the definition of “polyvinyl alcohol,” a term central to classification of the product.
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The product at issue, Neflicon Polymer Solution, is an aqueous solution of modified polyvinyl alcohol. The percentage of polyvinyl alcohol in the solution is about 95 percent. Imported from Germany and Switzerland between 1999 and 2001, the U.S. Customs Service, as CBP was known at the time, liquidated the entries under HTS subheading 3905.99.80 (“Polymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: Other: Other: Other”), dutiable at a 5.3 percent. CIBA protested, arguing that Neflicon is properly classifiable under subheading 3905.30.00 (“Polymers of vinyl acetate or of other vinyl esters, in primary forms; other vinyl polymers in primary forms: Polyvinyl alcohols, whether or not containing unhydrolyzed acetate groups”), dutiable at 3.2 percent. Customs denied the protests, and in response to a CIBA application for further review, issued ruling HQ 964854 (here).
In considering motions for summary judgment, which both Customs and CIBA requested, CIT cannot weigh evidence to determine truth. If any doubt exists over what constitutes material fact, CIT must deny such a motion.
In this case, CIBA and Customs disagreed over whether Neflicon is polyvinyl alcohol. CIBA provided evidence that Neflicon is polyvinyl alcohol, but did not offer a scientific or technical dictionary definition. CIT said it also found the relevant explanatory notes were ambiguous. Unconvinced, CIT said it could not classify Neflicon under 3905.30.00 because CIBA’s evidence did not establish Neflicon was polyvinyl alcohol as a material fact.
CIT said it could not rule in favor of Customs either, however. Absent a determination that Neflicon is not classifiable as a polyvinyl alcohol under subheading 3905.30.00, it is not possible to conclude that Neflicon is properly classifiable under the residual “other" provision of subheading 3905.99.80. CIT therefore denied both parties’ motions for judgment on the agency record.
(CIBA VISION Corporation v. United States, Slip Op. 12-118, dated 09/19/12, Judge Ridgway)
(Attorneys: John Pellegrini of McGuire Woods for plaintiff CIBA; Saul Davis for defendant U.S. government)