The opinion
Slip Op. 10 - 63
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: HONORABLE NICHOLAS TSOUCALAS, SENIOR JUDGE
____________________________________x
SPARKS BELTING COMPANY, :
Plaintiff, :
v. :
Court No. 02-00245
UNITED STATES, :
Defendant. :
____________________________________x
[Defendant’s motion for summary judgment is granted; Plaintiff’s cross-
motion is denied]
Dated: June 1, 2010
Edmund Maciorowski, P.C. (Edmund Maciorowski) for Plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams, Attorney-in-
Charge, International Trade Field Office, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice (Aimee Lee); Chi S. Choy,
Office of Assistant Chief Counsel, International Trade Litigation, U.S.
Customs and Border Protection, Of Counsel, for Defendant.
OPINION
TSOUCALAS, Senior Judge: At issue is the proper classification under
the Harmonized Tariff Schedule of the United States (“HTSUS”) for certain
merchandise imported by Plaintiff Sparks Belting Company (“Sparks”).
This action, which has been designated a test case pursuant to USCIT Rule
84, is before the Court on cross-motions for summary judgment. For the
reasons set forth below, the Court finds that no genuine issues of
material fact remain and this dispute may be resolved pursuant to USCIT
Rule 56.
Court No. 02-00245 Page 2
I. Background
The present action involves several entries made between March and
September of 2000 through the port of Detroit, Michigan. The subject
imports are described in the commercial invoices and other entry
documents as “conveyor belts”. See Pl.’s Statement of Material Facts as
to Which There is No Genuine Issue to be Tried (“Pl.’s Facts”) ¶ 12;
Def.’s Resp. to Pl.’s Statement of Material Facts as to Which There is
No Genuine Issue to be Tried (“Def.’s Resp. to Pl.’s Facts”) ¶ 12. The
merchandise is designed and used in industrial applications for the
conveyance of food products and other goods. See Pl.’s Facts at ¶ 25.
Upon liquidation of the entries, the merchandise was classified and
assessed with duties by U.S. Customs and Border Protection (“Customs” or
the “Government”) under either Subheading 5910.00.10, HTSUS,1 with an
assessed duty rate of 5.6% ad valorem, or Subheading 5910.00.90, HTSUS,
with a duty rate of 3.6% ad valorem. See Entries, Protests. The
relevant portions of Heading 5910 are as follows:
5910.00 Transmission or conveyor belts or belting, of textile
material, whether or not impregnated, coated, covered or
laminated with plastics, or reinforced with metal or
other material:
5910.00.10 Of man-made fibers 5.6%
* * *
5910.00.90 Other 3.6%
Sparks protested Customs’ classification of the subject merchandise,
asserting that classification was proper under either 5903.10.15, HTSUS,
or 5903.20.15, HTSUS, both with dutiable rates of 1.4% ad valorem. See
1
Unless otherwise indicated, all statutory citations, including those
to the HTSUS, are to the 2000 edition.
Court No. 02-00245 Page 3
Protests. After Customs denied Plaintiff’s protest at the port level,
Sparks filed a timely summons with the Court disputing the classification
of the subject imports. All liquidated duties, charges and exactions for
the subject entries have been paid prior to the commencement of this
action. See Compl. at ¶ 3.
During discovery, Defendant served interrogatories on Sparks in
order to obtain samples of specific measurements. See Def.’s Br. at Ex.
2. Sparks submitted ten sample pieces of the subject merchandise and a
proposed stipulation in early autumn of 2008. With one exception in
August of 2009, Plaintiff did not produce any further samples to
Defendant. See Def.’s Br. at 2; id. at Ex. 3. The Government proceeded
to file a motion to compel more samples. See Pl.’s Mot. to Compel (Doc.
25). The Court denied Defendant’s motion on the basis that the
Government had ample time to attain the samples but failed to, given that
the case had been ongoing since 2002 and that discovery had concluded.
See Mem. Order Den. Def.’s Mot. to Compel dated Aug. 31, 2009 (Doc. 29).
Both Plaintiff and Defendant concurrently moved for summary
judgment.2 As evidentiary support, the parties have submitted numerous
documents including the briefs for summary judgment and responsive
documents thereto. See Pl.’s Mot. for Summ. J. (“Pl.’s Br.”); Def.’s
Resp. to Pl.’s Mot. for Summ. J. (“Def.’s Resp.”); Pl.’s Reply to Def.’s
Resp. to Pl.’s Mot. for Summ. J. (“Pl.’s Reply”); Def.’s Mot. for Summ.
J. (“Def.’s Br.”); and Pl.’s Resp. to Def.’s Mot. for Summ. J. (“Pl.’s
Resp.”); Def.’s Reply to Pl.’s Resp. to Def.’s Mot. for Summ. J. (“Def.’s
Reply”). Sparks, who had originally named twenty-four entries containing
2
Plaintiff also filed a motion for leave in order to file a
motion for oral argument out of time on May 7, 2010 (Doc. 48), which
was denied on May 13, 2010 (Doc 52).
Court No. 02-00245 Page 4
eighteen products, abandoned its claims concerning all but seven entries
containing eight different products.3 See Summons; Def.’s Statement of
Material Facts as to Which There is No Genuine Issue to be Tried (“Def.’s
Facts”) ¶¶ 1-2 ; Pl.’s Resp. to Def.’s Statement of Material Facts as to
Which There is No Genuine Issue to be Tried (“Pl.’s Resp. to Def.’s
Facts”) ¶ 1; Pl.’s Br. at 2, n.2. Accordingly, this Court dismisses the
claims abandoned by Sparks.4
On March 31, 2010, Defendant moved to strike portions of the
affidavit of Ivo Spaargaren, attached as an exhibit to Plaintiff’s brief.
See Def.’s Mot. to Strike (Doc. 41). This Court granted Defendant’s
motion, ruling that parts of Spaargaren’s affidavit lacked a basis of
personal knowledge in contravention of USCIT Rule 56(e). See Mem. Order
Granting Def.’s Mot. to Strike, dated Apr. 20, 2010 (Doc. 47).
II. Contentions of the Parties
Sparks contends that its summary judgment motion should be granted
because Customs improperly classified the subject imports under Heading
5910, HTSUS, despite Chapter Note 6 which excludes “[t]ransmission or
3
The remaining merchandise at issue before the Court includes: BF BP
111 A/S [Entry 0056488-8]; 2M8 10/0 G and 2M8 20/0 SG3 [Entry 0054589-2]; EM
8/2 0+04 PU Trans AS [Entry 0018964-5]; EM 6/1+1 PVC AGREEN [Entry 0018909-0];
MF BP 111 A/S [Entry 0056352-6]; MF GP 270 [Entry 0055038-2]; Type 2E7-0N
White [Entry 0055741-1]. See Pl.’s Resp. to Def.’s Facts at ¶¶ 1-2.
4
The dismissed claims include: Sparks Part 02-800, WF NSF 24 Paraskin
N550 BEEG Blue [See Pl.’s Resp. to Def.’s Facts ¶ 6]; Sparks Part 03-111, MF
WU 110 A/S [See Pl.’s Resp. to Def.’s Facts ¶ 7]; Sparks Part 03-134, Ultra
Kool II [See Pl.’s Resp. to Def.’s Facts ¶ 8]; Sparks Part 03-135, Ultra Kool
II Light [See Pl.’s Resp. to Def.’s Facts ¶ 9]; Sparks Part 03-150, MF GU 210
[See Pl.’s Resp. to Def.’s Facts ¶ 10]; Sparks Part 03-326, MF AU 200 A/S,
12/2 00+00 PU Black AS [See Pl.’s Resp. to Def.’s Facts ¶ 12]; Sparks Part 03-
332, MF LBP 210, UN 100 P/M [See Pl.’s Resp. to Def.’s Facts ¶ 13]; Sparks
Part 02-802, Silon 40 HC, WF NSF 15, 12/2 00+00 PU Black AS, Paraskin N500
BEEG [See Pl.’s Resp. to Def.’s Facts ¶ 17]; Sparks Part 03-162, MF BU 300, 3
LRA RX [See Pl.’s Resp. to Def.’s Facts ¶ 17]; Sparks Part 03-175, Ultra Kool
II Tan, 2 M8 3/0 0U Tan [See Pl.’s Resp. to Def.’s Facts ¶ 17]; Sparks Part
03-242, MF WP 220, 2 M8 5/00 2T [See Pl.’s Resp. to Def.’s Facts 27]; and
Sparks Part 03-377, MF GP 230 [See Pl.’s Reply at 2, n.1].
Court No. 02-00245 Page 5
conveyor belting, of textile material, of a thickness of less than 3 mm”
from that heading. Sparks alleges that the subject articles are properly
classified under HTSUS subheadings 5903.10.15 or 5903.20.15, depending
on whether they are coated with polyvinyl chloride or polyurethane,
respectively.
The Government asserts that summary judgment is appropriate in its
favor for several reasons. Regarding the products not represented by a
sample, Defendant posits that Sparks failed to establish elements
essential to its case and upon which it bears the burden of proof.
Further, according to Defendant, the subject imports cannot be classified
under Sparks’ claimed classification provisions because those subheadings
contemplate the products being a fabric in accordance with Note 9 to
Section XI of the HTSUS, which the subject merchandise are not. Finally,
with regard to Entry 0054859-2, Defendant submits that the Court lacks
jurisdiction because Sparks’s protest of that entry has already been
granted.
III. Summary Judgment and Standard of Review
Summary judgment is appropriate when there is no genuine issue as
to any material fact and that the moving party is entitled to judgment
as a matter of law. USCIT R. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the
summary judgment stage, the question to be answered is “whether there is
the need for a trial- whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.”
Processed Plastic Co. v. United States, 29 CIT 1129, 1132, 395 F.Supp.2d
Court No. 02-00245 Page 6
1296, 1299 (2005) (internal citation omitted). The purpose of summary
judgment is to avoid a clearly unnecessary trial. See Seal-Flex, Inc.
v. Athletic Track and Court Constr., 98 F.3d 1318, 1321 (Fed. Cir. 1996)
(citing Matsushita Electric Indus. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
The fact that both parties have moved for summary judgment “does not
mean that the court must grant judgment as a matter of law for one side
or the other; summary judgment in favor of either party is not proper if
disputes remain as to material facts.” Mingus Constructors, Inc. v.
United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (internal citation
omitted). In classification cases, summary judgment is appropriate when
“there is no genuine dispute as to . . . what the merchandise is.” Ero
Indus., Inc. v. United States, 24 CIT 1175, 1179, 118 F.Supp.2d. 1356,
1359 (2000). In other words, if no dispute over a material fact would
impact the outcome of the suit and the action focuses solely on the
proper classification of the merchandise, a court may grant summary
judgment. See Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365
(Fed. Cir. 1998).
Ultimately, it is the Court’s duty to determine the correct
classification. See Jarvis Clark Co. v. United States, 733 F.2d 873, 876
(Fed. Cir. 1984). Classification cases are reviewed de novo by this
Court, pursuant to 28 U.S.C. § 2640(a). See Cargill, Inc. v. United
States, 28 CIT 401, 408, 318 F.Supp.2d 1279, 1287 (2004). The Court must
determine whether “the government’s classification is correct, both
independently and in comparison with the importer’s alternative.”
Sumitomo Corp. of America v. United States, 18 CIT 501, 505, 855 F.Supp.
1283, 1287 (1994).
In order to establish the proper classification of imported
Court No. 02-00245 Page 7
merchandise, the Court applies a two-step analysis whereby it “(1)
ascertain[s] the proper meaning of the specific terms in the tariff
provision; and [then] (2) determin[es] whether the merchandise at issue
comes within the description of such terms as [] properly construed.”
Global Sourcing Group v. United States, 33 CIT __, __, 611 F.Supp.2d
1367, 1371 (2009) (citing Pillowtex Corp. v. United States, 171 F.3d
1370, 1373 (Fed. Cir. 1999)). The first step of the analysis is a
question of law and the second is a question of fact. See Pillowtex, 171
F.3d at 1373.
The General Rules of Interpretation (“GRIs”) direct classification
of merchandise under the HTSUS. See Boen Hardwood Flooring, Inc. v.
United States, 357 F.3d 1262, 1264 (Fed. Cir. 2004). The GRIs are
applied in numerical order; once a particular rule provides proper
classification, a court may not consider any subsequent GRI. See Mita
Copystar Am. v. United States, 160 F.3d 710, 712 (Fed. Cir. 1998). The
first GRI holds that “classification shall be determined according to the
terms of the headings and any relative section or chapter notes.” GRI
1; see also Orlando Food Corp. v. United States, 140 F.3d 1437, 1440
(Fed. Cir. 1998). Section and Chapter Notes are “not optional
interpretive rules, but are statutory law, codified at 19 U.S.C. § 1202.”
Michael Simon Design, Inc. v. United States, 30 CIT 1160, 1164, 452
F.Supp.2d 1316, 1321 (2006) (internal quotation omitted). The
Explanatory Notes (“ENs”), which accompany each chapter of the HTSUS,
provide persuasive assistance to the court, though they do not constitute
legally binding authority. See Lonza, Inc. v. United States, 46 F.3d
1098, 1109 (Fed. Cir. 1995).
IV. DISCUSSION
Court No. 02-00245 Page 8
A. Jurisdiction over Entry 0054859-2
Prior to addressing the propriety of Customs’ classification, the
Court must dispense with a jurisdictional issue. Upon liquidation,
Customs classified Entry 0054859-2 under 5910.00.10, HTSUS, with an
assigned duty of 5.6% ad valorem. See Def.’s Resp. at 7. Sparks
protested that rate of liquidation and claimed that the goods should be
reliquidated under Subheading 5903.10.15, HTSUS, dutiable at 1.4% ad
valorem. See Pl.’s Br. at 20; Protest No. 3801-01-100321. Customs
denied Sparks’s protest on February 7, 2002. See Summons. However, less
than three months later, Customs reliquidated Protest No. 3801-01-100321
at the rate sought by Sparks in its protest and Plaintiff received duty
refund checks for all articles under this protest, including Entry
0054859-2. See Pl.’s Reply at 3; Pl.’s Br. at Ex. 14. Accordingly,
Defendant asserts, since Sparks received the relief it sought, there is
no case or controversy with regard to these products and the Court lacks
jurisdiction with respect to Entry 0054859-2. See Def.’s Resp. at 7.
The Court agrees.
A condition precedent to the Court’s power to adjudicate the appeal
of a denied entry is that an importer first file a protest with Customs
by ninety days after notice of liquidation. See 28 U.S.C. § 1581(a); 19
§ U.S.C. 1514. Such protest must be denied by Customs, in whole or in
part, for the Court to hear the civil action. See § 1581(a). Similarly,
an entry that has been reliquidated must also be protested and denied by
Customs for the Court to have jurisdiction. “[W]hen Customs changes its
decision ‘to conform to a decision sought by a protest, that protest has
been completely granted.’” Novell, Inc. v. United States, 21 CIT 1141,
1142, 985 F.Supp. 121, 123 (1997) (quoting Transflock, Inc. v. United
Court No. 02-00245 Page 9
States, 15 CIT 248, 249, 765 F.Supp. 750, 751 (1991)). This is because
“reliquidation vacates and is substituted for the collector’s original
liquidation. The reliquidation, not the original liquidation, is the
final decision of the collector as to the rate and amount of duty to be
paid by the importer, and the time to protest begins to run from the date
of the latest liquidation.” Mitsubishi Electronics America, Inc. v.
United States, 18 CIT 929, 931, 865 F.Supp. 877, 879 (1994) (internal
citation omitted). A reliquidation becomes final if the importer fails
to file a protest with Customs within ninety days. See §§ 1514(a), (c).
Thus, protest of a reliquidation with Customs is a prerequisite to
seeking judicial review. See Transflock, 15 CIT at 249.
Sparks asserts that the products at issue remain relevant since the
action before the Court has been designated a test case, involving the
same fact or questions of law for six pending cases, some of which
include the same products imported under the pertinent entry at issue
here, Entry 0054859-2. See Pl.’s Reply at 3-4. Plaintiff further
contends that the issues in this case are all the more salient
considering that other ports continue to enter these same products at the
current high rate of duty, resulting further litigation. See Pl.’s Reply
at 4. However, it is a well-established principle that the outcome of
a classification case is not considered res judicata for merchandise that
are not stemming from the actual transactions at issue before the court.
See United States v. Stone & Downer Co., 274 U.S. 225, 235-237, 47 S.Ct.
616, 71 L.Ed. 1013 (1927). The typical res judicata rules do not apply
in protest cases and collateral estoppel doesn’t prevent an importer from
successive litigation over the classification of merchandise, even when
subsequent importations involve the same issues of fact and the same
questions of law. See, DaimlerChrysler Corp. v. United States, 442 F.3d
Court No. 02-00245 Page 10
1313, 1321 (Fed. Cir. 2006). The Court has no power to entertain issues
that are not in controversy under the instant case. Sparks will be able
to fully address the products therein and related Customs decisions in
other ports when they are ripe for adjudication. Accordingly, Entry
0054859-2 must be dismissed from the case at bar. The remainder of this
dispute falls within the Court’s jurisdiction under 28 U.S.C. § 1581(a).
B. Motion for Summary Judgment
On a motion for summary judgment, the movant has the burden of
coming forth with evidence to support the factual allegations of its
claims. See Rockwell Automation Inc. v. United States, 31 CIT 692, 696
(2007) (citing Celotex, 477 U.S. at 323 (“[A] party seeking summary
judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.”)).
Summary judgment must be entered against a party who fails to make a
showing sufficient to establish the existence of an essential element to
its case. See Celotex, 477 U.S. at 323. Consequently, Sparks bears the
burden of offering evidence to support its claims that the correct
classification of the subject merchandise is under HTSUS subheadings
5903.10.15 or 5903.20.15 and not 5910.00.90 or 5910.00.10. In order to
determine whether Sparks has met its burden, the Court must ascertain the
proper meaning of headings 5910 and 5903, and their relevant section or
chapter notes under the GRIs.
To begin, Heading 5910 applies to “[t]ransmission or conveyor belts
or belting, of textile material, whether or not impregnated, coated,
Court No. 02-00245 Page 11
covered or laminated with plastics, or reinforced with metal or other
material”. Chapter Note 6 to Heading 5910 provides that it does not
apply to “[t]ransmission or conveyor belting, of textile material, of a
thickness of less than 3mm.” To that end, the Court must preliminarily
determine whether the imports are more or less than 3mm thick: if the
merchandise at issue is more than 3mm thick, it remains classified in
Heading 5910, but if it is less than 3mm thick, the belting is excluded
from this heading.
Next, Heading 5903 encompasses “[t]extile fabrics impregnated,
coated, covered or laminated with plastics, other than those of heading
5902.” For the subject merchandise to be classified under this heading,
two notes to Chapter 59 must be considered. The first note defines
textile fabric: “[e]xcept where the context otherwise requires, for the
purposes of this chapter the expression “textile fabrics” applies only
to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the
braids and ornamental trimmings in the piece of heading 5808 and the
knitted or crocheted fabrics of heading 6002.” Note 1 to Chapter 59
(emphasis in original). Thus, to be classified in Heading 5903, the
subject imports must consist of one of these textile fabrics.
The second note pertinent to Heading 5903 is Chapter Note 2(a).
Note 2(a)(1) provides that Heading 5903 does not apply to “[f]abrics in
which the impregnation, coating or covering cannot be seen with the naked
eye,” with no account being taken of any color changes. Thus, if the
merchandise at issue is comprised of a textile fabric that has been
impregnated, coated, covered or laminated with a plastic material that
cannot be seen with the naked eye, it is excluded from the parameters of
Heading 5903. Note 2(a)(2) states that Heading 5903 does not apply to
“[p]roducts which cannot, without fracturing, be bent manually around a
Court No. 02-00245 Page 12
cylinder of a diameter of 7 mm, at a temperature between 15°C and 30°C.”
Accordingly, if the subject merchandise cannot be bent manually without
fracturing, it is precluded from classification in Heading 5903. Lastly,
Note 2(a)(3) conditions that Heading 5903 excludes “[p]roducts in which
the textile fabric is either completely embedded in plastics or entirely
coated or covered on both sides with such material, provided that such
coating or covering can be seen with the naked eye with no account being
taken of any resulting change in color.” Thus, if the products at issue
are completely embedded or entirely coated or covered on both sides with
plastic that can be seen with the naked eye, it is ruled out from
classification under Heading 5903.
Now that the language of the tariff provisions has been ascertained,
the Court turns to the facts of the case at bar in order to determine
whether the subject merchandise fits within the parameters of the
relevant subheadings. In determining this question of fact, the Court
also proceeds in ascertaining whether Plaintiff has carried its burden
of establishing the elements of its case and prevail on its motion.
1. Entries Without Representative Samples
The Government advances that the headings and applicable chapter
notes at issue require specific information that can only be ascertained
by examining a physical sample. See Def.’s Br. at 7. Since only three
of the imports at issue were represented by a sample, and the absence of
any necessary information to determine the classification of each product
is tantamount to a failure of proof by Plaintiff, Defendant concludes
that Sparks has failed to prove its case as a matter of law regarding the
three remaining sample-less products, BF BP 111 A/S (Entry 0056488-8),
EM 6/1+1 PVC AGREEN (Entry 0018909-0), and MF BP 111 A/S (Entry 056352-
Court No. 02-00245 Page 13
6).
In response, Sparks posits that samples themselves are not a
required element of proof for classifying an article. To support this
proposition, Plaintiff relies on two Customs Court cases, W.T. Grant Co.
v. United States (“Grant”), 74 Cust.Ct. 3, 11, C.D. 4579 (1975), and L.B.
Watson Co., A/C Murphy Reir, Inc. v. United States (“Watson”), 79
Cust.Ct. 85, 87, C.D. 4717 (1977), both holding that any deficiency
caused by a lack of samples had been overcome by a reliable and complete
record, thereby allowing the Court to determine the proper classification
of the merchandise. See Grant, 74 Cust.Ct. at 9; Watson, 79 Cust.Ct. at
90.
It is accurate to state that samples of the merchandise as imported
would have conclusively determined classification due to the nature of
the tariff provisions advanced here by Sparks. However, it is also true
that the unavailability of physical samples is not a bar to recovery.
These two seemingly incompatible statements can be reconciled. The
Watson Court elucidates: although “it is not necessary for plaintiff to
offer a sample of the imported merchandise, it must, however, present
adequate evidence to establish the nature and essential characteristics
of the importation.” Watson, 79 Cust.Ct. at 87. Thus, the crux of the
issue is whether Plaintiff’s evidence as a whole succeeds in establishing
the essential characteristics required by the relevant tariff provisions.
Sparks claims that, even without samples, it has “provided
definitive evidence regarding the physical characteristics of the
articles.” Pl.’s Resp. at 2. To that end, Plaintiff submitted to the
Court documentary exhibits including technical data sheets and sworn
Court No. 02-00245 Page 14
affidavits5 , which it contends “present incontrovertible evidence
establishing that the physical characteristics of the subject articles
are representative of the condition of these articles, as imported.” Id.
Both the affidavits of Grasmeyer and Spaargaren address the sample-less
products, and include information on their manufacture, thickness, and
amount of plastic by weight. This information is cross-referenced by the
technical data sheets of both Sparks and the manufacturer of the product.
However, the relevant tariff provisions and chapter notes in this
case require very specific information that goes beyond basic data that
can typically be found in technical datasheets, books and records. The
supporting documentation contains manufacturing data which, in many
instances, establishes only some of the general characteristics of the
products, but not the very specific physical properties of the imports
necessary here. Furthermore, neither affidavit satisfies the criteria
required by the chapter notes. Spaargaren attempts to testify on these
characteristics, however the Court has previously ruled that Spaargaren
may not testify based on his personal knowledge and can only testify
based on books and records. See Mem. Order dated Apr. 20, 2010 (Doc 47).
Grasmeyer does not testify at all to the physical test requirements. The
result is that both Spaargaren and Grasmeyer’s testimony fails to
establish the essential characteristics required for classification.
Thus, although Sparks presented some data concerning the products during
discovery, such information is incomplete and falls short in satisfying
5
The affidavits that Plaintiff submitted are from John
Grasmeyer, Vice President of Operations at Sparks (“Grasmeyer Aff.”);
Ivo Spaargaren, responsible for manufacturing within the Management
Team of manufacturer Ammeraal Beltech Holding, B.V. (“Spaargaren
Aff.”); and Peter de Vries, Inside Sales Representative of
manufacturer Derco, B.V. (“De Vries Aff.”). See Pl.’s Br. and
accompanying documents.
Court No. 02-00245 Page 15
the visibility and physical test requirements necessary for
classification here.
Consequently, the Court finds that Plaintiff has submitted
sufficient proof with respect to the issue of some, but not all, of the
products at issue. Where samples have been provided, Sparks has met its
burden; for those products not represented by a sample, Plaintiff is
unable to provide adequate evidence establishing the essential
characteristics of each product in order to allow for an accurate
classification. In particular, the evidence presented by Plaintiff fails
to establish with certainty the essential characteristics, nature, and
identity of the merchandise without samples: BF BP 111 A/S (Entry
0056488-8); EM 6/1+1 PVC AGREEN (Entry 0018909-0); and MF BP 111 A/S
(Entry 0056352-6). Without such information, the Court cannot determine
accurate classification of these products. The Government is entitled
to summary judgment as a matter of law concerning these entries because
Plaintiff has failed to establish the existence of elements essential to
its case, and on which it bears the burden of proof at trial. There
exists “‘no genuine issue as to any material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
317 at 322-23 (citing Anderson, 477 U.S. at 250).
2. Classification for Products with Samples Provided
Samples exist for three of the remaining products at issue: MF GP
270 (Entry 0055038-2); Type 2E7-0N White (Entry 0055741-1); and EM 8/2
0+04 PU Trans AS (Entry 0018964-5). The parties are in agreement as to
the nature of these three products but disagree as to the meaning and
scope of the tariff provisions at issue. The sole issue is a matter of
Court No. 02-00245 Page 16
properly interpreting the classification term at issue to determine
whether the scope of that term is broad enough to encompass the items
with particular characteristics. Accordingly, this matter is ripe for
summary judgment of these three products.
The Court begins its analysis with the competing tariff headings.
Determining the most appropriate classification for the merchandise
involves a “close textual analysis for the language of the headings and
the accompanying explanatory notes.” Conair Corp. v. United States, 29
CIT 888, 891-892 (2005) (internal citation omitted). In determining
which heading is more specific, and hence more appropriate for
classification, a court should compare only the language of the headings
and not the language of the subheadings. See GRI 1, 3.
MF GP 270 and Type 2E7-0N White
Chapter Note 6 permits classification under Heading 5910 for
products that are 3mm thick or more. Both MF GP 270 and Type 2E7-0N
White are less than 3mm thick. See Def.’s Facts ¶ 15(a), ¶ 16(a); Pl.’s
Resp. to Def.’s Facts ¶ 15, ¶ 16. Although the parties differ on the
exact measurements of thickness, this is not a material fact since both
parties concur that the products are within the parameters of the
relevant chapter note. Thus, these products are excluded from
classification under Heading 5910.
Turning to Heading 5903, Chapter Note 1 provides that the subject
merchandise must be a “textile fabric.” The products at issue are woven
fabrics. See Def.’s Facts at ¶ 15(b), ¶ 16(b); Pl.’s Resp. to Def.’s
Facts at ¶ 15, 16. Since woven fabrics are a textile fabric, these
products fulfill the requirements of Chapter Note 1(a), and the
evaluation of Heading 5903 can proceed.
Court No. 02-00245 Page 17
Chapter Note 2(a)(1) and (3) require the merchandise to be comprised
of a textile fabric that has been impregnated, coated, covered or
laminated with a plastic material able to be seen with the naked eye but
not completely embedded, coated, or covered on both sides with plastics.
Type 2E7-0N White meets the terms of this requirement. See De Vries Aff.
¶ 4-5; Def.’s Facts ¶ 16. For MF GP 270, Sparks’s evidence does not
speak to the issue of whether the requirements of Chapter Note 2(a)(1)
and (3) have been met and thus the Court relies on Defendant’s lab
analysis to conclude that the coating is visible to the naked eye. See
Declaration of Deborah Walsh, Customs National Import Specialist, Def.’s
Br. at Ex. 8 (“Walsh Decl.”) ¶ 11.
Chapter Note 2(a)(2) conditions that the subject merchandise must
be able to be bend manually without fracturing around a cylinder with a
diameter of 7 mm, at a temperature between 15°C and 30°C. Again, Type
2E7-0N White clearly meets this requirement. See Walsh Decl. ¶ 11; De
Vries Aff. ¶ 6. With respect to MF GP 270, however, Plaintiff’s evidence
fails to establish the relevant characteristics and the Court again uses
Defendant’s lab report to determine that the product is able to bend
manually around a 7 mm cylinder. Thus, MF GP 270 complies with Chapter
Note 2(a)(2) and can be classified under Heading 5903. Accordingly, both
Type 2E7 0N White and MF GP 270 are classifiable under Heading 5903.
Having determined that Heading 5903 controls the analysis, the Court
may now look to the subheadings to find the correct classification for
the merchandise. See GRI 6; Orlando Food, 140 F.3d at 1440. Sparks
advances Subheading 5903.10.15, whereas the Government asserts that
5903.10.20 is more appropriate. The pertinent provisions of Heading 5903
are as follows:
Court No. 02-00245 Page 18
5903 Textile fabrics impregnated, coated, covered or
laminated with plastics, other than those of heading
5902:
5903.10 With polyvinyl chloride:
* * *
5903.10.15 Of man-made fibers: Fabrics specified
in note 9 to section XI: Over 60
percent by weight of plastics 1.4%
* * *
5903.10.20 Of man-made fibers: Other: Over 70
percent by weight of rubber or
plastics 1.7%
The merchandise is made with polyvinyl chloride (see Def.’s Facts ¶
15(d), 16(d); Pl.’s Facts ¶ 56) and so the critical issue is whether the
products qualify as “fabrics specified in note 9 to section XI,” which
provides that:
[t]he woven fabrics of chapters 50 to 55 include fabrics
consisting of layers of parallel textile yarns superimposed on
each other at acute or right angles. These layers are bonded
at the intersections of the yarns by an adhesive or by thermal
bonding.
Section XI, Note 9, HTSUS. Sparks contends that the subject merchandise
are Note 9 fabrics; the Government maintains that they are not.
Plaintiff interprets the language of Note 9 expansively to include
both the fabrics specified in the note as well as the regular “woven
fabrics of Chapters 50 to 55," which is defined in the ENs as:
products obtained by interlacing textile yarns (whether of the
kinds classified in Chapters 50 to 55 or those regarded as
twine, cordage, etc., of heading 56.07), rovings, monofilament
or strip and the like of Chapter 54, loop wale-yarn, narrow
ribbons, braids or narrow fabrics (consisting of warp without
weft assembled by means of an adhesive, etc.), on warp and
weft looms.
Harmonized Commodity Description and Coding System Explanatory Notes,
World Customs Organization, Vol. 2, Section XI, I(C). Sparks claims that
Court No. 02-00245 Page 19
any other reading of the term “woven” in Note 9 would negate its plain
meaning, and accordingly, Plaintiff asserts that Note 9 fabrics can be
joined together by mechanical bonding or by traditional interlacing.
On the contrary, Defendant argues, a Note 9 fabric cannot be a woven
fabric because by definition it does not have an interlaced fiber
construction. The Government urges the Court consider the EN in its
entirety, since it also provides that “[t]he essential characteristics
of [a Note 9 fabric] is that the yarns are not interlaced as in
conventional woven fabrics, but are bonded at the intersections with an
adhesive or by thermal bonding.” Id. According to Defendant, it is
plain that Note 9 fabrics are specialized and do not include traditional
woven fabrics that weave over and under each other. See Def.’s Br. at
15.
The Court finds that Plaintiff’s interpretation of Note 9 conflicts
with the true meaning of the tariff provision. It is a “general rule of
statutory construction that where Congress has clearly stated its intent
in the language of a statute, a court should not inquire further into the
meaning of the statute.” Pillotex, 171 F.3d at 1373. Section XI, Note
9 itself explicitly defines what a Note 9 fabric construction is: a
specific construction bonded with an adhesive or by thermal bonding, not
a traditional weave. If Note 9 fabrics were read in the way that Sparks
submits, there would be no need to distinguish Note 9 fabrics from
regular woven fabrics. The fact that Congress included this provision
indicates that it intended to delineate regular woven fabrics from Note
9 fabrics and restrict the scope of the subheading.
The Customs laboratory concluded that both MF GP 270 and Type 2E7-0N
White are textile fibers that are interlaced and woven in the traditional
Court No. 02-00245 Page 20
sense, and therefore cannot be Note 9 fabrics classifiable under
Subheading 5903.10.15. See Walsh Decl.; Ex. 5, Laboratory Reports.
Accordingly, entries 0055038-2 and 0055741-1, containing products MF GP
270 and Type 2E7-0N White, are classified under Subheading 5903.10.20
with a duty rate of 1.7% ad valorem.
EM 8/2 PU Trans AS
The final product, EM 8/2 PU Trans AS, measures less than 3mm wide
and cannot be classified within the parameters of Chapter 5910. See
Def.’s Facts ¶ 11(a); Pl.’s Resp. to Def.’s Facts ¶ 11. Turning to
Heading 5903, EM 8/2 PU Trans AS has been established as a woven fabric
in conformity with the requirements of Chapter Note 1. See Def.’s Facts
at ¶ 11(b); Pl.’s Resp. to Def.’s Facts at ¶ 11. The Court relies on
Defendant’s lab analysis of the representative sample for EM 8/2 PU Trans
AS, to conclude that the coating is visible to the naked eye, since
Plaintiff fails to establish the criteria of Chapter Note 2(a)(1) and (3)
based on the record.
The parties differ as to whether EM 8/2 PU Trans AS can bend
manually around a cylinder of a diameter of 7 mm, at a temperature
between 15°C and 30°C without fracturing. Sparks asserts that this
product can meet the test of Note 2(a)(2) but offers no admissible
evidence to that end. Instead, it urges the Court to conduct its own
test of Note 2(a)(2). See Pl’s Resp. at 12-13. The Court resists the
temptation to perform fact-finding functions on a motion for summary
judgment. However, this issue remains a question of law since Sparks has
offered no contradictory evidence on the record before the Court and so
no compelling reason exists to discredit Defendant’s laboratory testing.
The Government’s lab report concludes that EM 8/2 PU Trans cannot bend
Court No. 02-00245 Page 21
manually around a cylinder of a diameter of 7mm, at a temperature between
15°C and 30°C without fracturing. Therefore, EM 8/2 PU Trans AS is
excluded from classification under Heading 5903.
Since EM 8/2 PU Trans AS is excluded from HTSUS headings 5910 and
5903, the Court must look to another heading for classification. Heading
3921, HTSUS, provides for “[o]ther plates, sheets, film, foil and strip,
of plastics.” Note 2(m) to Chapter 39 excludes “[g]oods of section XI
(textiles and textile articles).” As discussed above, Sparks has failed
to demonstrate that the subject merchandise is classifiable under Section
XI, and consequently is not foreclosed from classification under Heading
3921 by Chapter Note 2(m). The Court concludes that Entry 0018964-5,
containing article EM 8/2 PU Trans AS, is most appropriately classified
under Subheading 3921.90.25, HTSUS, as:
3921 Other plates, sheets, film, foil and strip, of
plastics:
* * *
3921.90 Other:
* * *
3921.90.25 Combined with textile materials and weighing more
than 1.492 kg/m2: [p]roducts with textile
components in which man-made fibers predominate
by weight over any other single textile fiber
10.3%
IV. Conclusion
For the aforementioned reasons, Defendant must prevail “as a matter
of law,” based on the evidence before the Court. Anderson, 477 U.S. at
251-52. There remains no factual disputes that must be resolved at
trial. As a result, Spark’s motion is denied and the Government’s motion
for summary judgment is granted.
Court No. 02-00245 Page 22
The following entries were abandoned by Plaintiff and are hereby
dismissed: 1758482-7, 1758593-1, 0018821-7, 0018917-3, 0018992-6,
0055232-1, 0055126-5, 0055310-5, 005673-7, 0056589-3, 0056740-2, 0057066-
1, 0056634-7, 0018743-3, 0018769-8, 0054935-0, 0054712-3. The Court
dismisses Entry 0054859-2 for lack of jurisdiction. Plaintiff has failed
to establish the elements necessary to its case and upon which it would
bear the burden of proof at trial, with respect to entries 0056488-8,
0018909-0, and 0056352-6. Finally, the Court finds that entries 0055038-
2 and 0055741-1 are properly classified under Subheading 5903.10.20,
HTSUS, and Entry 0018964-5 is classified under HTSUS Subheading
3921.90.25.
/s/ TSOUCALAS
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: June 1, 2010
New York, New York