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 crossmotion is denied]

Dated: June 1, 2010 

Edmund Maciorowski, P.C. (Edmund Maciorowski) for Plaintiff.

Tony West, Assistant Attorney General; Barbara S. Williams, Attorney-inCharge, 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, with an 1

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

Unless otherwise indicated, all statutory citations, including those

1

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. As evidentiary support, the parties have submitted numerous 2

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

 Plaintiff also filed a motion for leave in order to file a 2

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. See Summons; Def.’s Statement of 3

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

The remaining merchandise at issue before the Court includes: BF BP

3

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.

The dismissed claims include: Sparks Part 02-800, WF NSF 24 Paraskin

4

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

affidavits , which it contends “present incontrovertible evidence 5

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

 The affidavits that Plaintiff submitted are from John 5

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/m [p]roducts with textile 2:

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